BOARD RULING IS CONTRARY TO STATUTE, LWEC GUIDELINES, AND CASE LAW

Board Decision adds to the confusion re: how to pay a claimant after he/she returns to work at less than the original average weekly wage

Longley Jones Management Corp., 2012 NY Wrk. Comp. 60704882; 2012 WL 1893410; 2012 NY Wrk. Comp. LEXIS 6173 (N.Y.Work.Comp.Bd., May 21, 2012)

The calculation of loss of wage earning capacity (“LWEC”)  for all claimants regardless of whether they are working or not must first be determined upon a preponderance of the evidence in the record concerning the nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, claimant’s age, and any other relevant factors.

The Board Panel found that the claimant was permanently partially disabled to a moderate degree and since the claimant was working at the time of classification earning 76% of his wages at time of injury, his loss of wage earning capacity is 24%.  The claimant returned to work at a salary of $360.00, and was entitled to 250 weeks of benefits.  However, PPD claimants should not be treated differently simply because of the fact that they may be back at work at the time of classification.

 Therefore, the Full Board found that in calculating a PPD claimant’s loss of wage earning capacity pursuant to WCL §15(3)(w), it is not appropriate to draw a dispositive distinction between working and non-working claimants.  Thus, LWEC need be determined for all claimants regardless of work status to govern the extent of the CAP.  A reduced earnings calculation must still be performed to determine the rate of benefits for working claimants.

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