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NYS Workers Compensation Board’s Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity

The Workers’ Compensation Board has issued new guidelines for determining a claimant’s permanent impairment and loss of wage earning capacity. These guidelines can be found at the Workers’ Compensation Board website of www.wcb.ny.gov. The Guidelines will be used by the Workers Compensation Judge to evaluate the maximum number of weeks of benefits (“the cap”) for claimant’s who are determined by a Judge to have a permanent disability to the head, neck, back and/or other injuries that do not involve a limb. These guidelines have made this process extremely complicated because they require some familiarity with medical and vocational rehabilitation terms. This will make a final determination of the loss of wage earning capacity very difficult for unrepresented claimants.

Prior to March 13, 2007, a claimant could be classified with a “permanent partial disability (PPD)” and that determination by the Workers Compensation Judge would entitle a claimant to permanent payments of Workers’ Compensation benefits into the future. The New York State Legislature changed the law effective March 13, 2007 by placing a finite cap on payments for any injury that occurred after that date. These caps assign a number of weeks of payments based upon the percentage of the claimant’s loss of wage earning capacity. (for example, a 51% loss of wage earning capacity will entitle a claimant to payments for 350 weeks) (See WCL §15(3)(w)). The guidelines were put into place to assist the Judge in making the determination of the loss of wage earning capacity.

So at the time that the claimant is found to have reached maximum medical improvement, (meaning the doctor does not believe that you will get any better then you are at that point) the Judge must determine the degree of your disability to determine your rate of payment, and your loss of wage earning capacity to determine the length of the cap.

In my opinion, the new guidelines for the determination of loss of wage earning capacity create a more complex and bureaucratic procedure for the evaluation and payment of a disability to the claimant. Unfortunately, the Workers' Compensation Board, in an effort to reduce and avoid litigation, has actually created a system by which a claimant cannot navigate the system without attorney representation.

I would urge anyone that has the opportunity to review these guidelines to relate their opinion of them to the Workers’ Compensation Board and in particular the Workers' Compensation Chairman, so that the Board understands that it is creating a more complex system rather then simplifying it.

-Bob Helbock

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