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Disability benefits they can use that to persuade a Workers' Comp Law Judge (WCLJ) to find them to have involuntarily withdrawn from the labor market.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.
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WELCOME
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.
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
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.
DETERMINING YOUR DEGREE OF DISABILITY
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.
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