3. Claimant working at time of Classification
• The wage earing capacity of an injured employer in cases of partial
disability shall be determined by his actual earnings. (WCL § 15(5-a))
• These Disability Duration Guidelines provide part of the methodology
for determining the percentage of loss of wage-earning capacity and
related Duration Maximums for individuals who are subject to
Section 15(3)(w) and are not working. (LWEC Guidelines)
• Full Board has detrained that ; “PPD Claimants should not be treated
differently simple because of the fact that they may be back at work at the
time of classification”. (Longley Jones Management Corp.)
4. Application to Reopen
• The claimants failure to act on [the carrier request for job
search] is insufficient standing alone to overcome the
inference afforded a PPD claimant. (Franics Brothers Sewer
& Drg)
5.
6. Application to Reopen
• Employer Job: Proof that the employer back to work within the
claimant’s restrictions
• Vocational Job: A vocation experts opinion that they are jobs in
which the claimant can perform within their restrictions. (Siding
Restoration of CNY)
• Non-Participation: Proof that the claimant failed to participate with
the employer sponsored program. (Sun Harbor Manor)
7. Non-Participation
• Communication with claimant’s attorney seeking permission to work with
claimant. (Howland Pump and Supply Co. Inc.)
• Prior notification to claimant’s attorney that a communication will take place
at a specific time in the future. (Siding Restoration of CNY)
• An affidavit attesting to all the communication to all the parties.
(Kaleida/Buffalo General Hospital)
8. Total Industrial Disability
WCL § 37(2): Total Industrial Disability. No provision of this article shall in
any way be read to derogate or impair current or future claimants’ existing
rights to apply at any time to obtain the status of total industrial disability
under current case law.
TEST: Where the medical limitations coupled with the other factors that
effect his employability, such as age, education, ability to communicate,
read, and write, and limited vocational background, render the claimant
totally incapable of returning to the work force in any capacity.
9. Total Industrial Disability
• Schedule Loss of use does not prelude a finding of TID (Interstate
Brands Corp)
• When determining TID, other non work related physical
impairments may be considered (Nortrax Equipment)
• Failure to produce evidence of the contrary will almost always
guarantee the claimants success (Barsuk v. Joseph Barsuk Inc.)
