Explainer: Permanency Benefits in New York

The New York Workers’ Compensation Law allows for four types of benefits to be provided to injured workers: medical treatment, lost time wage replacement, death benefits, and permanent disability benefits. This article discusses the three types of permanent disability benefit available to the injured worker:

  • Scheduled loss of use.
  • Classification/LWEC
  • Permanent Total Disability.

The employer is exposed for permanent disabilities which the claimant may prove. These three types of disability are compensated at different rates.

Scheduled Loss of Use.

Values come from tables which establish the compensation for loss of limbs, vision, and hearing in terms of ‘weeks of compensation.’ Scheduled loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule use loss of the arm equates to 31.2 weeks of compensation. The award is the number of weeks of compensation according to the schedule multiplied buy the workers’ maximum rate (2/3rd of Average Weekly Wages subject to the maximum and minimum rates in place according to the year of the accident). Prior payments of compensation and wages (all wages, not just those paid at the compensation rate) are deducted from the award.

​Loss of Wage Earning Capacity – Permanent partial disability.

Permanent partial disability is reserved for body parts not covered by the schedule loss of use provisions. This includes the neck, back, heart attack, lungs, etc. However, body parts covered by the schedule loss provisions (arms, hands, feet) can be classified permanent partial disabilities if they are found to be “medically unstable” (worsening over time). For more on these benefits, see my article on “Loss of Wage Earning Capacity.”

Workers’ injured after March 1, 2007 (the date of the reform legislation) are subject to a capped number of weeks.
​LWEC (%) ​Maximum Weeks of PPD Benefits
> 0 – 15% 225 Weeks
> 15 – 30% 250 Weeks
> 30 – 40% 275 Weeks
> 40 – 50% 300 Weeks
> 50 – 60% 350 Weeks
> 60 – 70% 375 Weeks
> 70 – 75% 400 Weeks
> 75 – 80% 425 Weeks
> 80 – 85% 450 Weeks
> 85 – 90% 475 Weeks
> 90 – 95% 500 Weeks
> 95 – 99% 525 Weeks

​Permanent total disability.

Permanent total disability is just that: total disability that is not temporary and which prevents the claimant was engaging in work giving rise to earning enjoyed before the disabling accident. The benefit rate is 2/3rds of the Average Weekly Wage (subject to the maximum rate caps depending on the year of injury). This benefit is payable weekly. There is no cap on weeks – this benefit may be payable for the remainder of the claimant’s life.

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Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com