- As you know, there have been many recent changes to the hearing and administration process before the Workers' Compensation Board. The electronic file system has resulted in a dramatic reduction in the number of hearings scheduled. This reduced volume is expected to last until September-October. However, WCL '32 settlements remain a valuable tool to expedite and close cases. We encourage settlement using the '32 format whenever possible.
- Recent decisional law is important. On June 18, 1998, the Appellate Division, Third Depart-ment, rendered the decision entitled Meisner v. UPS. It is a very adverse decision on the issue of voluntary removal from the labor market (as well as intentional underemployment or limitation of work). The Court held that if a claimant is classified permanently partially disabled, Workers' Compensation Law '15(3)(w) permits an award of reduced earnings irrespective of the claimant's intentional or "self-imposed" diminished earnings. However, the case appears limited to those claims where the claimant is actually working at reduced earnings, albeit, at a menial job. If the claimant is intentionally not working, or refuses a job within his or her abilities, we can still argue voluntary removal. Fortunately, this case is on appeal to the Court of Appeals. This case contradicts those cases which hold that a claimant must make a good faith and reasonable effort to be employed within his or her abilities (Tisko v. GAF, 27 A.D.2d 619; Smith v. Tonowanda Paper, 283 A.D. 690).
- A second important decision is Till v. Chautauqua Opportunities, July 2, 1998. This case addresses the age-old problem of average weekly wage. Claimant was a teacher, employed 41 weeks per year. The Board used a 260 multiple. The Court held it was not reasonable or fair to use a 260 multiple, but rather, the average weekly wage should be calculated using the actual annual earnings. By inference, this case can be applied to anyone whose job requires that they be regularly or predictably laid off for several months each year, e.g. school bus drivers, teachers, aides, and possibly construction workers.
- A reminder that your workers' compensation file has a conditional exemption from disclosure afforded "material prepared for litigation" and is not summarily subject to production by subpoena in a liability action (Sprague v. IBM, 114 A.D. 1025).
- Under the heading "major change in interpretation of law," comes the decision of James Dinger v. K-Mart Corp., 667 NYS2d 860, reported March, 1998. The Appellate Division retrenched from prior decisions (McNeil v. Geary, 105 A.D.2d 539) and agreed with the Board decision that when wage expectancy applies to a schedule loss of use award , the Board may award the period of temporary total disability benefits at the actual average weekly wage, and the SLU award for the permanent partial disability at the wage expectancy rate. This can result in a substantial savings to employers and carriers, since the actual lost time weeks shall count against the schedule weeks awarded at the "real" average weekly wage, rather than the wage expectancy rate which is often artificially inflated to $400 and, until now, retroactively applied for all weeks awarded in the schedule. The Court reasoned that this was a question of fact for the Board, i.e., whether to "reclassify" the disability as permanent partial disability retroactive to the date of injury, rather than from the end of period of temporary total disability as done in this case. This decision is a very important decision for your claims processing of schedule awards with wage expectancy.
- This Defense Law Letter is brought to you as a service in an effort to keep you up to date on changing aspects of the Workers' Compensation Law.
Law Offices of
STOCKTON, BARKER & MEAD
By Robert S. Stockton
Executive Park North
Albany, NY l2203
(5l8) 435-1919
New York Workers' Compensation Update
This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed March 26, 2008
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