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Vocational Factors Not Considered Re: “Temporary Marked Partial Disability Rate”

The Third Department determined the Workers’ Compensation Board applied the correct standards when determining a claimant’s temporary marked partial disability rate.  The claimant argued that the Board should have considered “vocational factors” in determining the compensation rate, i.e., claimant’s level of education and her ability to find other work.  The Third Department, in a detailed analysis of the language of the applicable statutes, disagreed:

As pertinent here, the compensation rate for temporary partial disability resulting in reduced earning capacity is based upon the difference between the claimant’s pre-injury average wages “and his [or her] wage earning capacity after the accident in the same or other employment” (Workers’ Compensation Law § 15 [5]…). In almost identical language, the compensation rate for permanent partial disabilities that are not amenable to schedule awards is based upon the difference between the claimant’s previous wages “and his or her wage-earning capacity thereafter in the same employment or otherwise” (Workers’ Compensation Law § 15 [3] [w]…)). For both temporary and permanent partial disabilities, the “wage earning capacity” of a claimant with no actual earnings is to be set by the Board at a reasonable level not greater than 75% of the claimant’s previous full-time earnings, “having due regard to the nature of his [or her] injury and his [or her] physical impairment” (Workers’ Compensation Law § 15 [5-a]…)). These provisions include no reference to vocational factors. However, when determining a claimant’s “loss of wage-earning capacity” in order to set the duration of permanent partial disability benefits following classification (Workers’ Compensation Law § 15 [3] [w] …), the Board considers not just the nature and degree of the injury, but also “work restrictions, [the] claimant’s age, and any other relevant factors, with the [claimant’s] ‘wage earning capacity’ as its inverse” …).

We reject claimant’s contention that this analysis should be applied to the determination of “wage earning capacity” as the term is used in Workers’ Compensation Law § 15 (5-a). Matter of Canales v Pinnacle Foods Group LLC, 2014 NY
Slip Op 03576, 3rd Dept 5-15-14

 

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