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New York State Workers' Compensation reform

May 09, 2011

Up until the year 2007, more than a decade passed without any substantial reform to the New York State Workers' Compensation Law. Prior to the changes in the Law, an injured worker would be entitled to a maximum rate of $400.00 per week for lost wages related to occupational trauma. As part of a series of major changes to the Workers Compensation Law, the maximum weekly rate of compensation has increased to $500.00 per week for injuries and accidents occurring on or after July 1, 2007, to $550.00 per week on and after July 1, 2008, to $600.00 per week on and after July 1, 2009 and to a maximum of two-thirds (2/3) of the New York State Average Weekly Wage on and after July 1, 2010, re-indexed to the State Average Weekly Wage annually on July 1st thereafter. Equally as important, the state minimum weekly rate of compensation has increased from $40.00 to $100.00 for those accidents or illnesses occurring on and after July 1, 2007.

Dramatic changes have also been made to how and individual is paid lost wages for permanent partial disabilities related to work-related accidents and illnesses. Under the old law (for accidents and illnesses which developed prior to March 13, 2007), injured workers classified a having a permanent partial disability, generally related to spinal injuries, are potentially eligible to receive weekly lost wage payments for the duration of their life so long as the individual is not working or working but earning less money per week than they did in the year prior to the accident or development of their occupational illness. However, for accidents and illnesses developing on or after March 13, 2007, the Law now potentially caps or places a limit on the number of weeks or years a person may receive weekly lost wage replacement benefits. For example, an individual found to have a 51% through 60% permanent loss of wage earning capacity would be entitled to 350 weeks of compensation or 6.23 years worth of compensation whereas a 71% through 75% loss entitles an individual to 400 weeks of compensation or 7.69 years of compensation at a rate which is still being debated and adjudicated by the Workers' Compensation Board and most likely the Courts given the various ways which the new laws are likely to be interpreted by injured workers, employers, carriers and their respective attorneys.

The cap or limitation on benefits does not, however, begin until the Workers' Compensation Board finds the person to be permanently partially disabled. Once the permanency finding is made, the maximum number of weeks then payable to the injured worker is determined by assessing the person's percentage of wage earning impairment. In other words, what type of work is the person potentially capable of performing when considering their medical condition(s) and non-medical factors, including age, education, and prior work experience. While non-medical factors were not regularly considered in assessing degrees of permanent disability prior to the new law, non-medical factors will now be vital considerations when calculating the individuals' wage earning capacity or impairment.

Where an individual is judged to have an 80% or greater wage earning impairment (or a 20% wage earning capacity or less) or a permanent total (as opposed to partial) disability, the individual can qualify for lifetime weekly lost wage replacement benefits, similar to the permanency finding made for accidents and illnesses occurring before March 13, 2007. Moreover, an individual who is initially found to have less than an 80% wage earning impairment may later qualify for additional lost wage payments after the initial period of permanent partial lost wage payments are paid, depending on their level of wage earning impairment.

Where an individual is unable to work for at least one (1) year, Social Security Disability benefits, administered by the Federal, Social Security Administration, can be paid at the same time in which the person receives New York State Workers Compensation lost wage benefits.

The Employer and/or their Workers' Compensation Insurance carrier remain responsible for reimbursing the injured worker for their miscellaneous medical and travel (i.e., mileage) expenses related to their occupational trauma. This includes but is not limited to travel to and from the doctor's office, physical therapy, chiropractor, x-rays, MRI scans, and for evaluations by the Employer/Carrier's medical consultant. The current mileage reimbursement rate is 55 cents per mile.

Regarding cash settlements, effective March 13, 2007, self-insured employers, their administrators and carriers are now required to make an offer of settlement to the injured worker within two (2) years of when a claim is filed with the New York State Workers' Compensation Board, or within six (6) months of when an individual is found to have a permanent disability, whichever is later. Prior to the March 13, 2007, employers and carriers were not required to make any type of settlement offer.

For further information about the recent changes to the New York State Workers' Compensation Law or for any questions or concerns about the Workers' Compensation Law, please contact Alex C. Dell, Esq., an attorney who concentrates on representing injured and disabled individuals with their New York State Workers' Compensation and Social Security Disability claims. Law Firm of Alex C. Dell, 450 New Karen Road Albany, New York 12205. (518) 862-5555.