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
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
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.
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