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Part 2: What is Loss of Wage Earning Capacity?

For anyone who has followed my blogs and web site over the last several years or so, I have been saying that for accidents prior to March 2007 in New York State Workers’ Compensation benefits have been lifetime. But the new law limits how long you can continue to receive payments. I also said that the new law was unfolding and only a New York workers’ compensation attorney could help you understand how.

Well, now, the law has unfolded more and we are able to understand the process better. Also, few old cases are still unresolved, so, almost all of our clients now have had their accident since March 2007 and the time limits apply to just about everyone.

Essentially, at the end of your case, assuming you are out of work and have a non-schedulable injury, defined as an injury to a part of your body that is not an extremity or an eye, the Workers’ Compensation judge can decide that you will be entitled to a set amount of money per week for a set amount of time. What this means is that if a judge declares, for example, that you have a 50% loss of wage earning capacity, you will receive one third of your salary for slightly less than six years. The judge can decide you are entitled to more, less, or nothing. Only those people who a judge determines to be unable to do any work of any kind whatsoever receive lifetime payments. To have a workers’ comp judge decide that are entitled to permanent payments, you almost have to be dead. The standard for total disability permitting lifetime payments is almost impossible to reach in New York workers’ compensation.

Now, the question is how does a judge make a decision? What criteria are utilized? This is where I can now say that we still don’t have a clear idea, but, we are starting to see a process evolve. This is to say that as time goes by, the system is starting to develop some standards and some consistency, although figuring out what you will receive is still based on guesswork.

Each judge seems to have a different set of standards. Your doctor and the insurance doctor are supposed to review a complex set of rules and provide the judge with a letter and a number that the judge is supposed to use as a starting point in the analysis of how much money you get. So, the insurance doctor might say you have a severity ranking of 3 and an impairment ranking of F. This is based on some type of weird point system in which your MRI might be worth several points and whether you had surgery might be worth points.

Of course, no one really knows what the points mean, including the judge. The judge is then supposed to figure out what restrictions the doctors have placed on you. For example, do the doctors say you shouldn’t lift too much or stand too much? Finally, the judge will ask you about how far you got in school, whether you have any special talents and how well you speak English. Taking all that into account, the judge will give you a percentage number, a loss of wage earning capacity.

Then, you look up what the chart says about this percentage and you are supposed to get this amount of money. Of course, if you and the insurance company agree, you can tell the judge to base the loss of wage earning capacity on your agreement rather than the judge’s decision.

Now, if all of this seems to be confusing and to make little sense, you are in good company. Judges and lawyers are confused as well. But, this is the system, like it or not. Believe it or not. This is another reason to speak to a New York Workers’ Compensation lawyer.

Contact Robert A. Koenigsberg – NY Workers’ Compensation Attorney

Call the Law Office of New York workers’ compensation lawyer Robert A. Koenigsberg if you have any questions about this process at (212) 964-9292 or fill out an online contact form to schedule your free initial consultation today.