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B.R., Queens

Off The Record – Workers’ Comp – Loss of Earnings Claim

Video Transcript

Hi. So, today I wanted to bring people up to date about a couple of things that are happening with Workers’ Compensation benefits and some directives that have come down from the Workers’ Compensation Board. When people are designated to have a partial disability from work, meaning that they are not totally disabled from all forms of work, but they have a partial disability that prevents them from doing their regular work, what was typically happening prior to COVID was that there was an obligation to either return to your job in a light-duty capacity, and if there is no light work available at your employer’s place of business, then there was an obligation to look for work within your restrictions in a different place of employment.

This falls under the topic called “Attachment to the Labor Market.” It means that if you have a partial disability, there is an obligation to remain attached to the labor market by doing some kind of work within your work restrictions. During COVID, when many businesses where shut down and there was an obvious difficulty even just going to regular work, this obligation was lifted. Now, coming up August 16th, 2021, the obligation would go into effect again and it can be raised by insurance carriers as a defense to paying out benefits on a claim. So, what I want to tell people is, if your doctor is saying you can do some kind of work, the obligations are that you have to approach your employer to see if they have any light-duty work available. And if they don’t then there is an obligation to look for other work within your restrictions.

And it doesn’t necessarily mean that you may find work, but you just have to make an effort to find work. And if you find work, and you’re making less money…So, two things, if you return to your job, if your employer says, “You know what? You work 40 hours a week normally, we can give you 20 hours a week light duty.” If you’re making less, then you have what we call a reduced earnings claim. So if you were making, say, $600 a week in your full position, and now you’re only able to make $200 a week, you can collect two-thirds the difference of that from the insurance company because you are operating at a loss due to your injury. Okay, so that applies whether you return to your regular job, with your regular employer, or if you have to find work elsewhere. Okay, so whether it’s to go back to your own place of business, or they don’t have anything, and then you go find a job somewhere making less, you can submit your pay stubs and recover some of the difference, so you’re not at a total loss.

But, that’s the way it goes under the Workers’ Compensation law. Partial disability status means that you can do some kind of work, and you either have to go back to your employer and work in some capacity. If they don’t have anything available, then there is an obligation to look for work elsewhere. If you have any questions about this topic, do not hesitate to contact any one of our attorneys to go through the specifics. Thank you.

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