You are here: / / CLAIMANT PROPERLY FOUND TO HAVE A 35% LOSS OF WAGE EARNING CAPACITY DESPITE...

CLAIMANT PROPERLY FOUND TO HAVE A 35% LOSS OF WAGE EARNING CAPACITY DESPITE HIS HAVING RETURNED TO WORK FULL-TIME.

The Third Department determined claimant was properly determined to have a 35% loss of wage earning capacity even though he had returned to work full-time. Because claimant had returned to work, he was not awarded any compensation. However, should his ability to work change, he would be entitled to up to 275 weeks of compensation. The court explained the different meanings of “wage earning capacity” and “loss of wage earning capacity:”

The employer argues that, because claimant returned to work full time at his preaccident wages, claimant’s wage-earning capacity at the time of classification was 100%; therefore, the employer’s argument continues, the Board’s finding that claimant sustained a 35% loss of wage-earning capacity was in error and unlawful. The employer’s argument on this point ignores the fact that the terms “wage-earning capacity” (see Workers’ Compensation Law § 15 [5-a]) and “loss of wage-earning capacity” (see Workers’ Compensation Law § 15 [3] [w]) “are to be used for separate and distinct purposes” … . As this Court recently reiterated, “wage-earning capacity is used to determine a claimant’s weekly rate of compensation,” whereas “loss of wage-earning capacity . . . is used at the time of classification to set the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” … . “Unlike wage-earning capacity, which can fluctuate based on a claimant’s employment status, loss of wage-earning capacity [is] intended to remain fixed” … . Contrary to the employer’s assertion, “[t]he durational limits imposed by Workers’ Compensation Law § 15 (3) (w) do not distinguish between claimants who are employed at the time of classification and those who are not” … . Matter of De Ruggiero v City of N.Y. Dept. of Citywide Admin. Servs., 2017 NY Slip Op 03999, 3rd Dept 5-18-17

WORKERS’ COMPENSATION LAW (CLAIMANT PROPERLY FOUND TO HAVE A 35% LOSS OF WAGE EARNING CAPACITY DESPITE HIS HAVING RETURNED TO WORK FULL-TIME)

You might also like
THE JUDGE PRESIDING OVER THIS TRAFFIC ACCIDENT CASE SHOULD HAVE GRANTED PLAINTIFFS’ RECUSAL MOTION; DEFENSE COUNSEL WAS ACTIVE IN THE JUDGE’S ELECTION CAMPAIGN (THIRD DEPT).
THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING A USE VARIANCE; THE INTITIAL PETITION FAILED TO NAME A NECESSARY PARTY WHO WAS KNOWN TO THE PETITIONERS AND WAS DISMISSED ON THAT GROUND; THE AMENDED PEITITION, WHICH NAMED THE NECESSARY PARTY, WAS DISMISSED AS TIME-BARRED; BECAUSE THE PETITIONERS HAD NO DOUBT ABOUT WHO THE NECESSARY PARTY WAS AND HAD NAMED HER IN A PRIOR PETITION, THE RELATION-BACK DOCTRINE COULD NOT BE INVOKED (THIRD DEPT).
Law of the Case Doctrine Should Not Have Been Invoked—Criteria Explained
Grassy Area Where Plaintiff Fell Was Not Part of a Highway or a Sidewalk–Prior Written Notice of the Defect (to the Town) Not Required
THE OPINION EVIDENCE THAT CLAIMANT’S PRE-EXISTING HEART CONDITION WAS A HINDRANCE TO HER EMPLOYABILITY WAS INSUFFICIENT, THE WORKERS’ COMPENSATION CARRIER, THEREFORE, WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND (THIRD DEPT).
CLAIMANT’S APPLICATION TO SERVE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A VALID EXCUSE FOR THE DELAY (THIRD DEPT).
CRIME VICTIMS DO NOT HAVE STANDING TO CHALLENGE A PRISONER’S RELEASE ON PAROLE (THIRD DEPT).
County Court’s Suppression of Statements and Fruits of Search Reversed

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANT, WHO WAS UNABLE TO WORK BECAUSE OF DOMESTIC ABUSE, WAS ENTITLED TO... PLAINTIFF DEEMED TO HAVE READ AND UNDERSTOOD THE SETTLEMENT DOCUMENT BEFORE...