Basic Outline Of New York State Workers’ Compensation

Basic Outline Of

New York State Workers' Compensation

By: Robert E. Grey Grey & Grey, LLP

1. Who is covered

a. employer/employee relationship b. jurisdiction c. covered employment

2. What is covered

a. accidents

i. in the course of employment - outside workers - special errands - dual purpose - gray area

ii. out of the employment - presumption - assaults - heart attacks and strokes - unwitnessed accidents

iii. time limitations - notice - statute of limitations

b. occupational diseases

i. peculiar to and characteristic of the employment ii. date of disablement

- notice - statute of limitations iii. hearing loss

Grey & Grey, LLP: 115 Broadway, New York, NY 10007 (212) 964-1342

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118-21 Queens Blvd, Forest Hills, NY 11375 (718) 268-5300

360 Main Street, Farmingdale, NY 11735 (516) 249-1342

3. Benefits

a. Temporary Disability Benefits.

i. The waiting period: no compensation for first week out. If out for 2 weeks, benefits are due for days lost in the second week. If out one day into the third week (15 days of disability) the waiting period is waived and benefits are payable back the beginning.

-

Days are counted starting with the first full day missed

from work (does not include the date of the accident.

-

Days are counted starting from the first medical evidence

of disability.

ii. Average Weekly Wage: WCL ? 14 provides method of calculation of average weekly wage based on 52 weeks of earnings before the accident ? but usually not straight division of the payroll.

-

If the worker has multiple jobs, all are considered

(concurrent employment).

-

Workers under the age of 25 are entitled to an adjustment

(wage expectancy).

-

If the worker did not work for the employer for a

substantial part of the year before the accident, a similar

worker payroll should be used.

iii. Temporary Total Disability.

-

2/3 of the worker's average weekly wage, up to the

maximum rate for the date of the accident.

-

For accidents between July 1, 1992 and July 1, 2007 the

maximum benefit is $400/week.

-

For accidents between July 1, 2007 and July 1, 2008 the

maximum benefit is $500/week. The minimum benefit rate

is also raised to $100 per week (from $40) as of July 1,

2007.

-

For accidents between July 1, 2008 and July 1, 2009 the

maximum benefit is $550/week.

Grey & Grey, LLP: 115 Broadway, New York, NY 10007 (212) 964-1342

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118-21 Queens Blvd, Forest Hills, NY 11375 (718) 268-5300

360 Main Street, Farmingdale, NY 11735 (516) 249-1342

-

For accidents between July 1, 2009 and July 1, 2010 the

maximum benefit is $600/week.

-

The maximum benefit rate for accidents occurring after

July 1, 2010 will be two-thirds of the state average weekly

wage.

as of 7/1/10 = $739.83; as of 7/1/11 = $772.96; as of 7/1/12 = $792.07 as of 7/1/13 = $803.21 as of 7/1/14 = $808.65 as of 7/1/15 = $844.29

iv. Temporary Partial Disability.

-

Degrees of partial disability are generally mild (25%),

moderate (50%) and marked (75%).

-

Degree of Disability = Degree of loss of earning capacity.

Remaining earning capacity = 100 minus degree of

disability.

v. Calculation of Rate of Compensation:

( degree of disability )

AWW x (------------------------) = rate of compensation

( 150

)

-

Example: if AWW is $900, and degree of disability is

50%, 50/150 = 1/3. $900 x 1/3 = $300 rate.

-

Rate is always subject to the maximum rate for the date of

accident.

vi. Reimbursement to the Employer.

-

If wages are paid for time out of work due to on-the-job

injury, the workers' compensation award for the period is

reimbursed to the employer, not paid to the claimant.

-

If accrued time the employer must re-credit the worker with

the dollar amount of time that equals the workers'

compensation award.

Grey & Grey, LLP: 115 Broadway, New York, NY 10007 (212) 964-1342

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118-21 Queens Blvd, Forest Hills, NY 11375 (718) 268-5300

360 Main Street, Farmingdale, NY 11735 (516) 249-1342

-- Collective bargaining agreement may provide otherwise.

vii. Reduced Earnings.

-

If the worker has a partial disability (some earning

capacity) and returns to work at a wage lower than the

average weekly wage, workers' compensation rate is 2/3 of

the difference between the AWW and the reduced earnings

figure.

-- Example: Worker with AWW of $900 and partial disability returns to work earning $500. Reduction in earnings is $400 ($900 - $500) and workers' compensation rate is $266.67 ($400 x 2/3).

-- Note that work at reduced earnings may increase workers' compensation rate (for example worker with $900 AWW gets $150 per week for mild partial disability when not working, but $266.67 per week when working and earning $500 per week.

b. Permanent Disability Benefits.

i. Schedule Loss of Use.

-

Tables in WCL ? 15(3) provide value of limbs, vision, and

hearing in weeks of compensation (for example an arm =

312 weeks).

-

Schedule loss is the percent of those weeks equal to the

percentage loss of function of the member (for example a

10% schedule loss of use of the arm = 31.2 weeks of

compensation).

-

The award is the number of weeks of compensation

according to the schedule multiplied by the worker's

maximum rate (2/3 of the AWW subject to the maximum

rates).

-

Prior payments of compensation and wages (all wages, not

just at the compensation rate) are deducted from the award.

Grey & Grey, LLP: 115 Broadway, New York, NY 10007 (212) 964-1342

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118-21 Queens Blvd, Forest Hills, NY 11375 (718) 268-5300

360 Main Street, Farmingdale, NY 11735 (516) 249-1342

ii. Permanent Partial Disability.

-

Usually for body parts not covered by the schedule loss

provisions, such as neck, back, heart attack, lungs, etc.

-- Body parts covered by the schedule loss provisions may be "classified" permanent partial disabilities if they are found to be medically unstable.

-

Awards are only payable for actual loss of earnings (not

working or working at reduced earnings).

-

Workers injured before March 13, 2007, can potentially be

paid for life if found to be permanently disabled. Workers

injured after March 13, 2007 are subject to a capped

number of weeks. The number of weeks depends on the

degree of disability (or loss of earning capacity) shown on

the following table:

Degree of Disability = Weeks of benefits

96%-99% = 525 weeks.

91-95%

= 500 weeks.

86-90%

= 475 weeks.

81-85%

= 450 weeks.

76-80%

= 425 weeks.

71-75%

= 400 weeks.

61-70%

= 375 weeks.

51-60%

= 350 weeks.

41-50%

= 300 weeks.

31-40%

= 275 weeks.

16-30%

= 250 weeks.

1-15%

= 225 weeks.

iii. Permanent Total Disability.

-

Worker must have a permanent loss of all earning capacity.

Benefit rate is 2/3 of the AWW (subject to maximum rate)

payable weekly, not subject to the caps.

-

Workers with a medical partial disability may be "totally

industrially disabled" due to vocational factors such as age,

education, experience, language barrier, etc.

Grey & Grey, LLP: 115 Broadway, New York, NY 10007 (212) 964-1342

5

118-21 Queens Blvd, Forest Hills, NY 11375 (718) 268-5300

360 Main Street, Farmingdale, NY 11735 (516) 249-1342

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