In New York, Workers’ Compensation Law claim resolutions are very different than a personal injury law suit. Pain and suffering is not taken into account under the Workers’ Compensation Law and the amount of money you receive is based on the percentage of permanent impairment that you sustained as determined by either your healthcare provider or that of an independent medical examiner. 

This content was provided by:
Courtney L. Kahoud, Esq. of Fusco, Brandenstein & Rada, P.C.
[email protected]
516-496-0400 X 4479

Michael F. Walker, Esq. of Fusco, Brandenstein & Rada, P.C.
[email protected]
516-496-0400 X 4437
Date: February 20, 2019

If the percentage of permanent impairment cannot be agreed upon by the injured worker and the carrier, the Workers’ Compensation Law Judge (“WCLJ”) will direct the parties to depose the doctors and will then determine the appropriate percentage based on the medical testimony and reports.  This percentage is applied to your average weekly wage (“AWW”) to set a permanent rate or lump sum award depending on the injury.

There are several ways a claim can resolve depending on the types of injuries you have sustained, including a Schedule Loss of Use (“SLU”) award, facial disfigurement award (“FDA”), or being classified with a permanent partial disability (“PPD”) or permanent total disability (“PTD”). Additionally, some claimants may opt to settle their claim by way of a Section 32 settlement agreement. 

Settlement agreements are either full and final, which means both future Workers Comp medical and indemnity benefits are discontinued in lieu of a lump sum award, or indemnity only, which leaves open future medical treatment under the claim.  Section 32 settlement agreements are voluntary for both the injured worker and the insurance carrier, so there is no way to compel the insurance carrier to enter a settlement agreement.

Under the New York Workers’ Compensation Law, the goal is provide employees with medical treatment so that they may heal their injuries and, ideally, return to work.  Once a person is no longer seeing improvements from their treatment, or is not interested in the only course(s) of treatment which may result in functional improvement, they are determined to have reached maximum medical improvement (“MMI”). 

Once an injured worker has reached MMI both the claimant’s treating doctor(s) and the insurance carrier’s consultant doctor(s) will perform a permanency examination to assess whether the claimant has permanent impairment to any established site(s) of injury.  The doctors use the “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” to assess whether a person has sustained any permanent impairment and, if yes, the percentage of impairment.

A Schedule Loss of Use (“SLU”) award is a lump sum award payable for causally related permanent impairment to the arms, legs, hands/wrists, feet/ankles, fingers, eyes and hearing loss.  Each of these sites is assigned a maximum value in terms of weeks under the Workers’ Compensation Law.  The percentage loss of permanent impairment is then applied to that number of weeks to determine the total award. 

For example, an arm is worth a maximum of 312 weeks of benefits under the law.  So a 10% SLU to the arm would be worth 31.2 weeks of payments.  This is then multiplied by the maximum rate, which is 2/3 of your AWW up to the rate cap (currently $904.74 for injuries sustained on or after July 1, 2018). 

The insurance carrier and/or your employer will take credit for any prior indemnity payments for lost time during your claim out of your lump sum award.  Occasionally, the amount of indemnity benefits received while out of work exceed the value of the SLU award.  When this occurs the injured worker is not required to pay back the difference, but they do not receive a lump sum SLU award.

For permanent scars to your face, a monetary facial disfigurement award (“FDA”) of up to $20,000.00 may be made depending on the severity of your scarring.  It is necessary to provide both before and after pictures so that the WCLJ may make a determination on the severity of the facial disfigurement award.

Injured workers determined to have permanent disabilities that are not amenable to either SLU or FDA awards are classified as having either permanent partial disabilities (“PPD”) or permanent total disabilities (“PTD”).  These include but are not limited to injuries to the neck, back, head, respiratory or heart conditions, and psychological conditions.  Additionally, certain injuries to SLU sites noted above may also be amenable to PPD or PTD classification.

Persons injured prior to March 13, 2007 would receive weekly benefits at the permanent disability rate for the rest of their lives.  Persons classified PTD still receive lifetime benefits irrespective of the date of injury.  However, persons classified PPD who were injured after March 13, 2007 now receive awards for a finite window of time as set by their Loss of Wage Earning Capacity (LOWEC). 

The LOWEC looks at such vocational factors as level of education, professional certifications, age, work history, ability to use a computer, etc.  The number of weeks ranges from 225 weeks to 525 weeks depending on these factors.  These weeks run from the date of classification, not from the date of injury.  Unlike with SLU awards, the carrier and/or employer do not take credit for any payments made prior to classification.  The determination on LOWEC is made by the WCLJ at the same time at which the injured workers is classified PPD.

The permanent disability rate is determined at the time of classification.  This is based on permanency examination(s) of both the treating doctor(s) and carrier consultant doctor(s) using the permanency guidelines noted above.  The minimum rate is 25% of the maximum rate or $150.00, whichever is higher, so long as the AWW is at least $150.00.  A person may be classified PPD even if they have returned to work. 

Unlike with SLU awards, which are payable even when a person is working, PPD awards are payable only while a person is out of work.  However, if the injured worker is earning less money due to their permanent injuries, they may be eligible for Reduced Earnings awards.  The injured worker is required to submit paystubs and tax filings inclusive of W-2s for Reduced Earnings awards.

For SLU, PPD and PTD findings, a portion of your permanent disability may be attributed or apportioned to a prior condition, injury or accident affecting the same body part.  If this happens, the insurance carrier may only be responsible for the percentage of your medical treatment or monetary awards which is causally related to your work accident.

The parties are free to stipulate to an SLU or PPD/LOWEC finding prior to a WCLJ determination.  This is not a Section 32 settlement, as the claimant does not agree to waive the right to future indemnity or medical treatment.  Rather, it allows both parties to compromise on a specific issue and avoid the risk of the WCLJ making an adverse determination.  A stipulation can occur at any time prior to a WCLJ Decision, or to resolve a point of contention pending on appeal.

The parties may also opt to reach a Section 32 settlement agreement at any point during the life of the claim.  This is voluntary by both parties and neither side may compel the other to negotiate or entertain settlement demands.  There are two types of settlements: full and final, and indemnity only.  Full and final settlements relieve the carrier of any future obligations to pay for medical treatment or indemnity benefits. 

In exchange, the claimant receives a one-time lump sum award.  If the injured worker is receiving Social Security Disability (“SSD”) benefits then a Medicare Set-Aside is required.  This is a separate amount of money payable to the claimant for future medical treatment for established sites of injuries.  Indemnity only settlements relieve the carrier of any future obligations to pay for indemnity benefits, but leave open the medical treatment portion of the claim. 

As with the full and final settlements, the claimant receives a one-time lump sum award in exchange for the discontinuance of biweekly checks.  Any portion of the claim addressed in a Section 32 settlement agreement cannot be reopened in the future.