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Calculating Wage-Loss Benefits

 State: N.Y.


Actual Earnings Should be Considered when Calculating Wage-Loss Benefits


An injured worker's wage-loss award had to be based on her actual earnings during her period of disability for the time she remained attached to the labor market, a New York appellate court ruled.


Case: Matter of Gioia v. Cattaraugus County Nursing Home, No. 517853, 11/06/2014, published.


Facts: Patricia Gioia suffered a compensable industrial injury while working for the Cattaraugus County Nursing Home. In 2011, she filed a petition requesting a ruling on the permanency of her disability and wage expectancy.


The physician who conducted an independent medical examination for the nursing home opined that Gioia had a moderate, permanent partial disability.


Procedural History: A workers' compensation law judge determined that she had a permanent partial disability and calculated her weekly compensation rate based on the difference between what her average weekly wage would have been if she hadn't gotten hurt and her wage-earning capacity.


Gioia appealed and the Workers' Compensation Board increased the amount of her wage-loss benefits. The board reasoned that her wage-loss benefits should be based upon her actual reduced earnings from the delicatessen where she was working.


Analysis: The Appellate Division's 3rd Department explained that under New York's established case law, if a worker's reduced earning capacity is related to her permanent partial disability, then her wage-earning capacity must be determined based on her actual earnings.


Evidence of the worker's capacity to earn more, or less, cannot be considered, the court said.


Disposition: Affirmed.


To read the decision, click here.

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