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April 13, 2021

Determining workers' compensation benefits in situations where the employee suffered a disability that is not amenable to a schedule award

The Appellate Division affirmed a decision by the Workers' Compensation Board in which the Board ruled, among other things, that the claimant sustained a 32.5% loss of wage-earning capacity.

Citing Matter of Varrone v Coastal Envt. Group, 166 AD3d 1269, the court opined that "In situations where, as here, a claimant sustains a permanent partial disability that is not amenable to a schedule award, the Board must determine the claimant's loss of wage-earning capacity in order to fix the duration of benefits".

The court agreed with the Board's method for determining the loss of wage-earning capacity for a claimant with a non-schedule permanent partial disability, which involved the evaluation of three elements: 

1. The nature and degree of the medical impairment;

2. Functional ability/loss; and

3. Non-medical vocational factors such as education, skill, training, age and literacy.

Click HERE to access the Appellate Division's decision.

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