Workers Compensation Blog by Attorney David Snyder about New York Workers Compensation Questions, Law, cases, and decisions.
Common questions our clients ask us in workers comp cases.
Below are hyperlinks to various questions and topics in workers compensation cases: click on the question below to advance to that question.
- How often do I need to see a doctor?
- What is attachment to the labor market?
- Where can I get help finding a job?
- Loss of Wage Earning Capacity in New York Worker’s Compensation Cases
- How does Loss of Wage Earning Capacity (LWEC) impact my case?
- What is permanency and when does it happen?
- What is maximum medical improvement?
- What is a Schedule Loss of use?
- How is the schedule loss of use determined?
- How much is each body part worth in a schedule loss of use?
- What is a Section 32 agreement?
- How often do I need to go to the doctor?
- What is an Occupational Disease?
How often do I need to see a doctor?
You must see your doctor every 90 days. Pursuant to 12 NYCRR 325-1.3, claimants need updated medical evidence of their disability every 90 days until they reach permanency.
What is attachment to the labor market?
The Board states that in order to continue to receive ongoing lost-wage benefits, a partially disabled claimant must be attached to the labor market attachment. A claimant must make reasonable efforts to obtain gainful employment consistent with his or her medical restrictions. Partially disabled claimants need only seek employment within their medical restrictions. If a claimant does not make reasonable efforts to look for work consistent with his or her disability, they will be found to have voluntarily withdrawn from the labor market. If a claimant is found to have withdrawn from the labor market, then they will not receive indemnity benefits.
A claimant must keep track of their efforts using forms C-258 and C-258.1. There are numerous pitfalls and we recommend that you consult with an attorney when labor market attachment is raised by the workers comp carrier.
Where can I get help finding a job?
- The NYS Department of Labor operates the JobZone, an online career services website where you can get help with your resume and cover letters, search job and apprentice opportunities, and access a wealth of resources to support your job search.
- The NYS Department of Labor also operates One Stop Centers, where workforce professionals help you find a job. For the office nearest you, call (888) 4NYSDOL (469-7365).
- The NYS Department of Education’s ACCES-VR (Adult Career and Continuing Education Services-Vocational Rehabilitation) is another valuable resource. To find the office nearest you, call (800) 222-JOBS (5627).
The quick guide to determining loss of wage earning capacity (LWEC) in a New York Workers compensation case. First off, it is recommended that you have an attorney to litigate or negotiate the loss of wage-earning capacity. Unfortunately, people wait until the very end to retain a lawyer. By the time LWEC is being discussed, the insurance company has already negatively impacted many of the issues making it harder to achieve a good outcome. Having a lawyer early in the case helps claimants to position themselves to achieve the best possible outcome.
When is there a loss of wage earning capacity determination?
When maximum medical improvement is reached, your doctor will issue an opinion regarding your loss. This is known as permanency. When you reach permanency, your doctor will determine what your permanent impairment is based on the New York State guidelines. The form that the doctor files will usually trigger the New York State Worker’s Compensation Board to issue hearing notices to have the parties obtain permanency opinions. The Board will also issue the notice randomly when they feel the case is getting old.
How is loss of wage earning capacity determined?
- The Workers Comp Board will require the parties to get opinions regarding permanency from either treating providers or independent medical examiners if the case is old enough under the general guidelines for permanency.
- If there is a difference in opinion between the IME and the treating provider, the judge will order the testimony of the relevant doctors on the permanent medical impairment.
- The parties will then take the testimony of the claimant who will testify regarding vocational factors such as education, work history, and experience. Testimony occurs after the filing by the claimant of the VDF-1 form.
- Once testimony is complete, the judge will make a decision regarding the relevant medical disability permanency finding.
- The permanency guidelines are particularly difficult to assess as they are complex and nuanced. It is certainly advisable to have an attorney who knows how to proceed under a multitude of arguments that the carrier will likely try to make.
- The Workers Compensation Law Judge (WCLJ) determines LWEC from this testimony, coupled with the medical disability level. Once this happens the case is then “capped” to a certain number of weeks based on the below chart based on the percentage of loss of wage earning capacity.
- LWEC is a particularly difficult thing to assess under the comp law. It is certainly advisable to have comp lawyer who knows how to proceed under a multitude of arguments that the carrier will likely try to make.
How does Loss of Wage Earning Capacity (LWEC) impact my case?
After the judge determines the medical permanency level pursuant to the guidelines, the parties take the claimant’s testimony concerning vocational factors, educational history, work history, and special training that may impact the claimant’s ability to work in the future.
The Workers Compensation Law Judge (WCLJ) determines LWEC from this testimony, coupled with the medical disability level. LWEC is a percentage loss for future earnings. Since 2007, New York has capped partial disability claims based on the LWEC. Once the WCLJ determines LWEC, the case is then “capped” to a certain number of weeks based on the below chart based on the percentage of loss of wage earning capacity.
LWEC Max. # weeks of PPD benefits
>0-15% 225 weeks
>15-30% 250 weeks
>30-40% 275 weeks
>40-50% 300 weeks
>50-60% 350 weeks
>60-70% 375 weeks
>70-75% 400 weeks
>75-80% 425 weeks
>80-85% 450 weeks
>85-90% 475 weeks
>90-95% 500 weeks
>95-99% 525 weeks
What is permanency and when does it happen?
- Permanency is the legal determination as to the final status of your workers comp claim after your doctor determines that you have reached maximum medical improvement.
- Permanency is determined after either a treating doctor or a carrier’s IME has determined that the claimant is at maximum medical improvement. If there is a discrepancy between the opinions, the parties will have to litigate the opinions of the two doctors and the workers compensation judge will have to make a determination if one or the other is correct.
What is maximum medical improvement?
Maximum medical improvement is the determination by your doctor that you are medically as improved as you are going to be after your injury.
The Board classifies with a permanent disability, either total or partial claimant concerning injuries such as traumatic brain injuries, neck injuries, and back injuries. New York workers comp law awards Schedule Loss of Use awards for cases involving body parts like arms and legs.
- What is a schedule loss of use? A schedule loss of use (or SLU) is an award for the loss of a body part. The Workers compensation law gives an award to injured workers for the functional loss of a body part. To simplify, if there is a complete loss of a body part, that award would be 100% of the maximum number of weeks that body part. Meaning that you would receive your average weekly wage award for that number of weeks.
- For instance, in New York, an arm is worth 312 weeks. If you were to have a complete loss of an arm the maximum amount of compensation you can receive for that loss would be 312 weeks. If your average weekly wage was $300 per week, you would receive $200 for 312 weeks or $62,400. Of course it is more complicated than that, but for simplification purposes if this was a 10% loss, it would be worth $6240.
- Your physician must make a determination as to the percentage of your loss. This cannot occur until you reach maximum medical improvement. The definition of maximum medical improvement cannot occur until at least one year after the injury date or surgery. The time for you to reach maximum medical improvement is also a medical decision for your physician. Workers compensation law
How is the Schedule Loss of Use (SLU) determined in workers compensation cases?
- In order for a judge to award a schedule loss of use (SLU), first your doctor must determine that you have reached maximum medical improvement. The doctor must submit their opinion C-4.3 (now CMS 1500) as to the exact amount of your loss. Using the New York State permanency guidelines, doctors will measure functional losses in mobility and assess any other criteria that can impact the level of loss.
- The insurance company can either accept the SLU opinion by the treating provider or they can schedule an IME for their own opinion. IMEs work for the insurance company to come up with a different opinion than your treating doctor. The parties then can either negotiate a compromise or litigate SLU to have the Board determine the level of loss. The chart below outlines the value for each body part that New York Law makes SLU awards.
How much is each body part worth under New York Workers Compensation Law?
The New York Worker’s Compensation Law describes the loss as a percentage of the number of weeks for each specified body part that can receive a schedule loss award. New York comp law awards the number of weeks for each body part as follows:
First Finger 46
Second Figure 30
Third Finger 35
Great Toe 38
Other Toes 16
Eye 160 New York workers’ compensation law
What is a Section 32 agreement?
Section 32 is the section of law that New York State uses to settle Worker’s Compensation cases. The Section 32 agreement can close out the entire case including medical benefits, or it can close out workers comp weekly payments (indemnity) only. The insurance company and the claimant must agree to the terms of the agreement. Frequently parties have their own reasons to not close out the case thus making it difficult to settle.
If you are an unrepresented Worker’s Compensation claimant, we would advise you to consult with an attorney about your case. Frequently, the insurance company is lowballing you on the value of your case. If you have a lawyer experienced in Worker’s Compensation, you will achieve a better outcome. An attorney will have a better understanding of the value of your claim and will be able to make better arguments as to why your case should settle for a higher amount.
How often do I need to go to the doctor?
Under NY Workers Comp Law, claimants need evidence of their disability every 90 days. The treating provider must be supervised by a lawyer. We also recommend that if you have not seen an actual MD, you request to be seen by a medical doctor at least once. Since the doctor is the person who will actually testify if there is a dispute as to any issue, that person needs to be familiar with you.
What is an Occupational Disease?
An Occupational Disease “is [an injury] which results from the nature of the employment, and by nature is meant … conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general”(Goldberg v 954 Marcy Corp., 276 NY 313, 319 .
Simply put, an occupational disease is an injury that happens over time, such as carpal tunnel syndrome or cancer from exposure to a toxic chemical. An occupational disease claim can be a back injury from lifting over time, an elbow injury from twisting, or a neck injury from doing overhead work for years.