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“Safety Net” Provision for Permanent-Partial Disability Caps

What is a “safety net”? If you are a gymnast or circus performer, you are likely very familiar with them, and you probably would not be alive today if they were not available. Similarly, “safety net” protections provided pursuant to the Workers’ Compensation law can also be a real “life saver” for those claimants whose weekly benefits are about to end permanently.

In 2007, the New York State Legislature passed a series of workers’ compensation reform-driven laws, including a provision which limits claimants, who have been classified with a permanent-partial disability, to an entitlement period of a maximum of 10 years of weekly benefits.

New York State softened the blow to injured workers in a few ways. For example, New York State included in the legislation a “safety net” provision (Section 15(3)(w)), which allows injured workers to apply for further benefits before their 10-year period lapses. The “safety net” provision only applies to a specific sub-class of claimants, who must request a re-determination to avail themselves of this protection. To qualify, you must have a “loss of wage-earning capacity” exceeding 75%, and the Workers’ Compensation Board must find that you would face “extreme hardship” if you lost your weekly benefits.

In plain English, this means you are legally permitted to request a re-determination hearing within the 10th year after you were classified with a permanent-partial disability, so long as you request the re-determination prior to the exhaustion of your benefits. If you are successful, this re-determination will convert your weekly benefits into a lifetime award, no longer subject to the 10-year cap. Obviously, this is process is both brand-new and very complicated; qualified claimants are only just beginning to reach their 10-year cap, so the whole process has not yet been tested in the State’s courts.

If you have been classified with a permanent-partial disability under the New York State Workers’ Compensation system, the most important thing for you to do now is to set a tickler/reminder for yourself prior to the date that your benefits will end; if you apply for a re-determination after your benefits run out, the Workers’ Compensation Board will not be willing to entertain your application.

When the time comes for you to apply for re-determination, your first step is to complete fully and accurately a specific form, Form C-35. Next, you must prove “extreme hardship,” but beware — workers’ compensation practitioners are still not sure of the legal definition for “extreme hardship,” so there is no concrete standard for you to look to just yet. We do know, however, that proving “extreme hardship” will require you to furnish monthly expenses for housing, credit cards, living expenses, transportation, food, housing, and utilities, along with additional expenses, such as student-loan payments, child-support payments, child-care expenses, and statements of expenses relating to the loss of personal property and damage to your home which is not covered by your insurance. Additionally, you will need to furnish an itemized list of all household income, including but not limited to income from family members living with you, Social Security benefits, and government and/or private pensions.

Once you have properly completed this application, you may request a hearing, where you must show up prepared; we anticipate insurance companies will aggressively defend against these claims, since successful claims will be very expensive for them.

In addition to the “safety net” provision, New York State also provided for an annual raise of the maximum weekly benefit a claimant can receive under the workers’ compensation system, which is a major alteration to the legal scheme regulating compensation rates for injured workers. This is the first major change in many years to the compensation-related legal scheme.

If you are an unrepresented claimant, we strongly encourage you to hire legal representation to guide you through the re-determination process. If you are represented, make sure to remind your attorney that your weekly benefits will be ending within the year, and inquire about your ability to apply for re-determination under the new “safety net” protections.

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