Where an Injured Worker Remains Attached to the Work Force After Injury, the Measure of Benefits Is the Difference Between Actual Earnings Before and After Injury and Cannot Be Based On Evidence of What the Worker Could Be Earning

The Third Department determined that the Workers’ Compensation Board correctly calculated the benefits to which claimant was entitled based upon her actual earnings in her new job in a delicatessen, as opposed to the amount her employer argued she was capable of earning.  Claimant was a nurse’s aid who injured her back while working in a nursing home:

Following a hearing, a Workers’ Compensation Law Judge determined that she had a permanent partial disability and calculated her weekly compensation rate — i.e., two thirds of the difference between what her average weekly wage would be absent injury and her current wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]), as measured by her degree of disability. Upon claimant’s application for review, the Workers’ Compensation Board increased claimant’s degree of disability and concluded that her wage loss benefits should be based upon her actual reduced earnings from the delicatessen where she now works, as opposed to her degree of disability, and adjusted her weekly awards accordingly. …

“[B]efore awarding wage replacement benefits in a nonschedule permanent partial disability case,” the Board must determine “whether a claimant has maintained a sufficient attachment to the labor market” … — i.e., that the claimant’s “reduced earning capacity is due to the disability, not . . . factors unrelated to the disability” (id. [internal quotation marks and citations omitted]), such as “‘age, [or] general economic conditions'” … . Once it is determined that a claimant’s reduced earning capacity remains involuntary and related to his or her permanent partial disability, “[t]he wage earning capacity of an injured employee . . . shall be determined by his [or her] actual earnings” while disabled (Workers’ Compensation Law § 15 [5-a]…). In that regard, the Court of Appeals has repeatedly explained that, for claimants who have demonstrated that they remained attached to the labor market, “where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period”… . Matter of Gioia v Cattaraugus County Nursing Home, 2014 NY Slip Op 07535, 3rd Dept 11-6-14