Third Department Appeals: Third Friday Podcast

Lois Law Firm Partner Christian Sison and guest Timothy Kane review five Third Department decisions that were issued last month. Claimants in these cases alleged neck injuries after decelerating 5 miles per hour in a truck, alleged being smashed like a jelly donut by an elevator, and alleged eye injuries due to pepper spray in a prison.

Christian and Tim discuss these cases and note the difficulty in having the Board’s decisions overturned or reversed. All five of the Third Department cases affirmed the Board’s rulings. This fostered dialogue between Christian and Tim regarding when to go to the Third Department and how we should be proactive at the Board level.
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Friday F.A.Q.: Can A Self-Employed Claimant Get A Reduced Earnings Benefit?

In New York workers’ compensation cases partially-disabled claimants are obligated to search for work before permanency is reached. If the claimant finds work but earns less than he was at the time of the accident, the employer may be liable for reduced earnings benefits, which is two-thirds of the difference between the pre-injury and post-injury wages. What happens when the claimant chooses to become self-employed and claims that his income is not “earnings” for the purposes of being eligible for workers’ compensation benefits. So, how does the Board address self-employment? Continue reading Friday F.A.Q.: Can A Self-Employed Claimant Get A Reduced Earnings Benefit?

Video: Appeals and Reopeners in New Jersey

Attorneys Joe Jones and Karen Vincent of the Lois Law Firm discuss appeals and reopeners of New Jersey workers’ compensation cases from the defense perspective.

Subject: New Jersey, Workers’ Compensation Law, reopens, appeals
Date Presented: February 26, 2018
Presenter: Joe Jones and Karen Vincent
Run time: 26:46

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Calculating Average Weekly Wage Under Section 14 of the New York State Workers’ Compensation Law

Attorney Nidhi Shetye joins LOIS.
Attorney Nidhi Shetye joins LOIS.
The claimant’s average weekly wage (“AWW”) lays the foundation for calculating weekly indemnity payments. It is, therefore, imperative to correctly calculate a claimant’s average weekly wage under the (not-so-clear) provisions of the New York Workers’ Compensation Law (“WCL”). Section 14 (4) of the WCL defines the claimant’s AWW as one fifty-second (1/52) of the claimant’s average annual earnings. Put simply, this means, the claimant’s yearly gross income divided by 52, the number of weeks in a year. This raises the question of calculating a claimant’s yearly income.

Section 14 (1) guides in calculating the annual wage for claimants who worked in the same employment at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury. WCL §14(1). For section 14 (1) to apply, the claimant needs to have had the same job for most of the year preceding his work-related injury, regardless of whether he had the same employer. Id. Once the claimant meets this criterion, his annual earnings are the product of his daily wages and either 260, if he worked 5 days a week, or 300, where the claimant worked six-day weeks. Id. Continue reading Calculating Average Weekly Wage Under Section 14 of the New York State Workers’ Compensation Law

Friday F.A.Q.: Does Protracted Healing Period (“PHP”) Apply to Every Schedule Loss of Use (SLU) Award?

No! PHP Protracted Healing Period (“PHP”) does not apply in every case. PHP applies only to Schedule Loss of Use (SLU) cases where the claimant had a total disability for a period of time exceeding the “normal healing period” for his particular injury. PHP is determined as a number of weeks, and the claimant is compensated at the temporary total disability (TTD) rate for each week, in addition to the number of weeks he is entitled to pursuant to his SLU.

In order to determine how much PHP is applicable, we first need to determine the normal healing period for the body part in question.

NY WCL Section 15(4-a) lays out the healing period for the schedulable body parts:
Arm – thirty-two weeks
Leg – forty weeks
Hand – thirty-two weeks
Foot – thirty-two weeks
Ear – twenty-five weeks
Eye – twenty weeks
Thumb – twenty-four weeks
First finger – eighteen weeks
Great toe – twelve weeks
Second finger – twelve weeks
Third finger – eight weeks
Fourth finger – eight weeks
Toe other than great toe – eight weeks

Next, we need to determine how many weeks the claimant was totally disabled for. This is usually easily determined by the number of weeks the claimant was awarded TTD benefits for. Sometimes, if no payments were made, and there is no contradictory medical evidence (an IME), the claimant will rely on his doctor’s reports finding him at a total disability in order to calculate the total disability time period.

Let’s go through an example step-by-step to see how PHP applies.

Injured body part: arm.
TTD rate: $500
Normal healing period for the arm: 32 weeks
Number of weeks at a temporary total disability: 50 weeks
SLU of arm: 25%, which equates to 78 weeks
SLU value of arm: 78 weeks x $500 = $39,000
PHP: 50 weeks (total disability period) – 32 weeks (normal healing period) = 18 weeks
PHP value: 18 weeks x $500 = $9,000

In this example, the claimant would be entitled to 18 weeks of PHP compensation ($9,000) in addition to the SLU value of his claim ($39,000). Of course, with SLU awards, the employer gets to take credit for prior payments made to the claimant.

Practice Point: In cases that involve schedulable body parts, the employer must be cognizant of the length of time that a claimant is receiving TTD benefits. This is easily overlooked when there is a direction to continue payments at the TTD rate, and there are no future hearings scheduled to address degree of disability. It is therefore advisable that employers be proactive about obtaining an IME that comments on degree of disability and litigate the issue in order to obtain a finding of a partial disability. Curbing temporary total disability is the key to keeping PHP at bay.

Friday F.A.Q.: Does Increased Wage Expectancy Apply in Every Case?

No, “Increased Wage Expectancy” does not apply to every New York case. “Increased Wage Expectancy” is a concept in New York Workers’ Compensation cases that allows for enhanced awards reflect future wage loss suffered by workers under the age of 25, who, under normal conditions would be expected to have increases in wages. It is aimed at workers who suffer from a permanent injury that would prevent them from obtaining wage increases in the future.

Per WCL §14(5), “if it be established that the injured employee was under the age of twenty-five when injured, and that under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages”. Generally, except in certain “atypical situations,” a finding of future wage expectancy should be limited to the same or similar employment that the claimant was in at the time of the injury. Matter of Lamiano v. Sousa & Sons, 158 AD2d 818 (1990). Continue reading Friday F.A.Q.: Does Increased Wage Expectancy Apply in Every Case?

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