How much is your non-schedule workers' comp case actually worth? In New York, it's not just about how badly you're hurt. It's about how your injury affects your ability to earn money. And the numbers that determine your benefits could make a huge difference in what you get paid. Let's get into it!
In New York, a non-schedule workers' comp case typically involves injuries to your head, neck, or back. It can also include conditions like respiratory problems, psychological injuries, and certain work-related illnesses.
Unlike schedule loss of use cases, which pay you based on permanent damage to a specific body part, non-schedule cases focus on how your injury affects your ability to earn a living.
That means even a serious injury doesn't automatically guarantee ongoing checks. If you return to work making the same money, you might not qualify for wage benefits. But if your injury keeps you out of work or forces you to take a lower-paying job, you may be entitled to compensation.
You can also remain eligible for medical treatment even if you're back at work earning your regular pay.
In New York, two numbers determine most of what your non-schedule case will pay: your average weekly wage (AWW) and your loss of wage earning capacity (LWEC).
Your AWW is generally based on your gross earnings during the year before your injury. Workers' comp typically pays up to two-thirds of that amount, subject to state limits.
For example, if you made $900 a week before getting hurt, your full compensation rate would be $600. But what you actually receive depends on your disability level:
Your LWEC also determines how long you can collect permanent partial disability benefits. For example, a 50% LWEC allows up to 300 weeks, while 75% allows up to 400 weeks.
That means $300 a week for 300 weeks could total $90,000, while $450 a week for 400 weeks could total $180,000.
These are potential totals, not guaranteed payouts. Certain previous payments may count against your available weeks.
And here's what's important: even a one-point difference in your LWEC can add weeks of benefits and potentially thousands of dollars to your case.
In New York, a workers' compensation judge ultimately decides your loss of wage earning capacity (LWEC) percentage, but your doctors play a big role in that decision.
Once you reach maximum medical improvement (MMI), meaning your condition isn't expected to improve much more, your doctor evaluates your permanent injuries. The insurance company's doctor may also examine you and give a different opinion.
The judge reviews both medical opinions, along with factors like your age, education, work history, and ability to do other jobs.
That's why two people with the same back injury could end up with different percentages. Someone who has worked physical jobs their entire life may have fewer options than someone with office experience.
Your percentage isn't just about how badly you're hurt. It's about how much your injury limits your ability to earn a living. And because that percentage affects how long you can collect benefits, getting it right can make a big difference in what your case pays.
Not necessarily. If you disagree with the percentage a workers' compensation judge gives you, you generally have 30 days from the filing of the decision to appeal.
But there's a catch. An appeal doesn't guarantee a higher percentage. The Workers' Compensation Board could actually lower it, so it's important to weigh the risks before appealing.
You may also be able to request a change later if your condition gets significantly worse. However, you'll need new medical evidence showing that your disability has changed. Simply getting another doctor to disagree with the original percentage usually isn't enough.
In some cases, worsening injuries may support a finding of permanent total disability, which can provide lifetime benefits. Workers who can't realistically earn a living because of their injuries and vocational limitations may also qualify for total industrial disability.
The bottom line? Your percentage isn't necessarily permanent, but changing it takes more than just disagreeing with the original decision.
I'm Rex Zachofsky, and I've spent more than 17 years helping injured workers throughout New York understand their rights and get the benefits they're entitled to.
If you have questions about your case or want to know what your options are, give my office a call anytime. We'll talk through your situation and figure out what makes sense for you.
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