How to protect your rights after being classified with a permanent disability in workers’ compensation case
Feb 06, 2020 | 15363 views | 0 0 comments | 885 885 recommendations | email to a friend | print

            At a certain point in virtually every workers’ compensation claim, the issue of whether the injured worker has sustained a permanent disability due to their accident at work will be addressed.  Oftentimes, this issue is raised by the insurance carrier who will argue that further active medical treatment will not benefit the injured worker such that the issue of permanent disability is ready to be addressed.  Ultimately, the insurance carrier will seek to raise the issue of permanent disability to the Workers’ Compensation Judge as soon after the accident as possible in order to reduce the cost of medical care it must pay for.  Insurance carrier doctors are aware of the carrier’s desire to reduce treatment costs and they will issue opinions consistent with the insurance carrier’s intention to reduce the cost of treatment.   

            Regardless of how the issue of permanent disability is raised, many injured workers will nonetheless eventually stabilize in their treatment and reach what is called maximum medical improvement.  This means that doctors have determined that further active treatment will not improve the claimant’s condition and only medical care with the purpose of maintaining the worker’s current condition is needed.  For a claimant who suffers from a permanent injury to certain body parts (typically the head, neck, or back), the Workers’ Compensation Board will classify the injured worker with a permanent disability and determine the worker’s Loss of Wage Earning Capacity caused by the accident.  Loss of Wage Earning Capacity, which is a percentage agreed upon by the parties or determined by a Workers’ Compensation Law Judge, takes into account the medical opinions of doctors from both sides as well as vocational factors such as the injured worker’s age, education, and prior work experience.  

            Importantly, the injured worker must always argue for a Loss of Wage Earning Capacity finding to be as high as possible.  This is because the higher the Loss of Wage Earning Capacity found by the Workers’ Compensation Law Judge, the higher the weekly benefits paid to the injured worker by the insurance carrier and the longer benefits are payable.  Once a finding is made by the Board as to Loss of Wage Earning Capacity due to permanent disability, the insurance carrier is directed to pay the injured worker at a specific rate per week for a set numbers of weeks into the future. This number of weeks is known as a “cap” on weekly benefits.   

            In some instances, an injured worker’s medical condition will worsen after a finding of Loss of Wage Earning Capacity is made such that a new surgery is required.  When an injured worker undergoes a surgery after already having been found to suffer from a Loss of Wage Earning Capacity on the case, they must take certain steps to protect their rights.  In a recent case decided at the highest level of review in the Workers Compensation Board, known as Full Board Review, the Board held that a new surgery after a finding of Loss of Wage Earning Capacity does not stop the cap on benefits from continuing to run.  In this decision, the Board overturned what used to be a common practice of not counting weeks of recovery after surgery against the cap on benefits for claimants who suffer from a Loss of Wage Earning Capacity.  In that decision, the Board also noted that if a claimant would like to have Loss of Wage Earning Capacity re-assessed after surgery, they must raise this issue before the Court prior to the cap on benefits running out.  

            This decision shows how important it is for an injured worker to have a seasoned attorney advocating on their behalf at the Workers’ Compensation Board.  Knowledge on these types of complex issues can obtain significantly more compensation for an injured worker in some circumstances.  That is why it is important for a clamant to consult with a workers’ compensation attorney as soon as possible after an accident.  

If you or someone you know has been the victim of an accident, please reach out to The Platta law Firm, PLLC for a free legal consultation by calling us 24/7 at 212– 514–5100, emailing at, or visiting our office in lower Manhattan (42 Broadway, Suite 1927). You can also ask us questions through the 24-hour chat box on our website ( We offer free consultations for all potential personal injury cases.


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