New York Workers' Compensation is an intricate area of law that is often subject to a number of misconceptions. This site is intended to help readers seeking clarification on the topic of NY Workers' Comp. Whether you are an injured worker lost amidst the complexities of Workers' Comp, a doctor who is not sure how to properly handle a Workers' Comp patient's file, or simply a curious New Yorker who worries about what would happen if you were ever injured on the job, I hope that the content of this site will deliver the answers you seek, even to questions you didn't know to ask.

It is my pleasure to welcome you into the world of New York Workers' Compensation. I hope you enjoy your visit, spread the word, and come back soon.

Best regards,

Camila P. Medici, Esq.

Wednesday, February 6, 2013

A Finding of Involuntary Retirement Prevents a Finding of Voluntary Withdrawal from the Labor Market

This is a question I get very often: If an injured worker was classified with less than a total permanent disability (a.k.a. permanent partial disability) but he/she was also found to have involuntarily retired from the labor market, the finding of involuntary retirement prevents a finding of voluntary withdrawal from the labor market.  This means that, if you are an injured worker who has been classified with a permanent partial disability and in your Notice of Decision the Judge has also found you to have involuntarily retired from the labor market, the Carrier cannot later on threaten to suspend your benefits absent a showing of a documented work search.  You do not need to produce such work search because by definition a finding of involuntary retirement means you cannot work in any capacity, irrespective of what degree of disability is associated with your comp claim.

The finding of involuntary retirement is often obtained by Claimants who have more damage to their health than just the comp injury alone.  Usually if the Claimant has been awarded Social Security Disability benefits they can use that to persuade a Workers' Comp Law Judge (WCLJ) to find them to have involuntarily withdrawn from the labor market. 

So if you are an injured worker that meets the above description and you have recently been harassed by the Comp Carrier to produce a work search record, you should send the Carrier a copy of the Notice of Decision highlighting the portion where you are found to have involuntarily retired.  That should take care of that issue.  If a hearing is required just bring that Decision to the Hearing and have the Judge re-affirm it. 

Most Recent Workers' Comp Wage Benefits Wage Maximums

As you all probably know from previous posts, under NY Workers' Comp Law an injured worker is entitled to receive wage benefits if they are unable to work as a result of their work related injury.  The wage benefits are based on the injured worker's percentage disability, his/her gross average weekly wage during the year leading up to the date of accident, and the statutory maximum allowed at the time of his/her accident. These statutory maximums go up every year based on NY state's average weekly wage (AWW).  Here is the new table of statutory maximum's according to NY Comp Law:  

Accidents Taking Place On or After                       Maximum  

July 1st, 2012                                                                       792.07
July 1st, 2011                                                                       772.96
July 1st, 2010                                                                       739.83
July 1st, 2009                                                                       600
July 1st 2008                                                                        550
July 1st 2007                                                                        500
July 1st 1992                                                                        400

IMPORTANTLY: The benefit rate a Claimant receives is capped by the maximum rate according to his/her date of injury, and it does not increase if new maximum benefits are adopted into law.  

Just as a refresher, your level of disability is crucial in determining how much you can collect. 

Your level of disability can fall under one of four categories: 

Mild = on average 25% disabled (includes any disability greater than 0% and up to 49.99%).

Moderate = on average 50% (includes 50-74.99 % disabled).

Marked = on average 75% (includes 75-99.99 % disabled).

Total = 100% disabled.
How your wage benefits are calculated:

Mild disability = 1/6 of your gross average weekly wage up to the statutory maximum.

Moderate disability = 1/3 of your gross average weekly wage up to the statutory maximum.

Marked disability = 1/2 of your gross average weekly wage up to the statutory maximum.

Total disability = 2/3 of your gross average weekly wage up to the statutory maximum.


            Your doctor is the one who determines your degree of disability as a result of the work accident.  In order for you to be able to collect wage benefits, your doctor’s reports MUST indicate the exact percentage of disability that you have and explain how it related to the work accident.  Without an exact percentage (for example, if your doctor simply states that you are partially disabled but does not indicate how much percentage of partial disability you have) you may only be able to receive the minimum amount available in the partial category.  Therefore it is CRUCIAL that you MAKE SURE your doctor’s reports indicate the exact percentage disability you have AND that your disability is causally related to your work accident.