03 Aug 2021

New York: College-Educated Claimant Who Worked Eight Years After Injury Found Entitled to 50 percent loss of Wage-Earning Capacity

Where a claimant sustained an injury in August 2008, was examined by the insurer’s medical examiner in November 2018, and found to have reached MMI and to have sustained a permanent impairment to her lumbar spine (class 2, severity A ranking), it was not error for the New York Board to determine that the claimant was capable of performing work involving medium work physical demands and that claimant had sustained a 50 percent loss of wage earning capacity, held a state appellate court. The court noted that where, as here, the claimant had sustained permanent disability that was not amenable to a schedule award, it was for the Board to determine the level of claimant’s loss of wage-earning capacity. Here, it had considered the nature and degree of the work-related impairment, the claimant’s functional capabilities, and other relevant vocational issues, including claimant’s education, training, skills, age and proficiency in English. The court found the Board had taken into account that while claimant was almost 68 years old at the time of the hearing, she had a college degree, was proficient in the English language, and had been employed on a full-time basis as an advocate for families and children with disabilities for a number of years. Such evidence supported the Board’s determination.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Ehrman v. Center for Discovery, 194 A.D.3d 1283 (3d Dept. May 20, 2021)

See generally Larson’s Workers’ Compensation Law, § 83.01, Digest, note 1; but see.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see