Under New York State Workers’ Compensation Law, when a worker suffers a permanent disability, more must be known. This is because there are different types of permanent disability recognized under New York law.
Some permanent disabilities are Partial. This means that the worker is still expected to look for work. Indeed, if the worker with a Permanent Partial Disability (otherwise known as a "PPD") does not perform a “good faith, diligent” search for work, or obtain work even if this means accepting a lower-paying job, the worker may no longer be entitled to draw weekly Workers’ Compensation benefit checks under New York law. Medical benefits will still be available if the Permanently Partially Disabled worker fails to look for work, but wage replacement benefits may not be available if the insurance carrier raises issues, such as attachment to the labor market or "voluntary removal" from the labor market. For more on this difficult subject, please see our Work-Search page.
Some Permanent Disabilities are Total. This means the worker retains absolutely no capacity to continue working (not even on a part-time or “limited duty” basis). Because the worker with a Permanent Total Disability arising solely as a result of a work-related injury or occupational disease retains no physical capacity to perform useful work, such a Totally Disabled individual is relieved of his/her legal duty to perform the otherwise mandatory Work-Search. Thus, both medical benefits and wage replacement benefits will continue for life for the Permanently Totally Disabled worker, and any Totally Disabled worker need not look for work in order to continue drawing all benefits to which he/she has been previously found entitled.
So, the question arises, what happens if the injured worker suffers only a Partial Disability related to the worker’s previous job, but is nonetheless Totally Disabled because that worker no longer retains any capacity for work due to other, compounding factors or reasons? In such situations, the worker may still be eligible for a finding of “Total Industrial Disability,” which will then relieve the injured worker from having to perform the Work-Search, while at the same time the worker will still be entitled to draw both medical and wage replacement benefits. However, it is critical for those who read this page to understand that the Work-Search requirement will not be relieved until after a Judge (not the claimant’s doctor) has determined that the disabled worker no longer needs to look for work and all appeal rights have been exhausted.
Of course, in order to obtain a finding of “Total Industrial Disability,” the injured worker will generally need the supporting opinions of experts such as doctors or vocational specialists. For instance, a disabled worker may be found “Totally Industrially Disabled” if that worker’s doctor writes a narrative report stating that the doctor has considered the claimant’s age, educational background, functional vocational skills remaining after the work-related disability is considered, together with all additional medical impairments suffered by the claimant (the physical and mental impairments not related to the claimant’s past work), and considering all these factors, and any others which may be relevant to the doctor’s conclusion, the doctor believes the worker should be considered “Totally Industrially Disabled.” In order to seek Total Industrial Disability with your doctor, please download the following form and present it to your attending physician after you have reached Maximum Medical Improvement.
Total Industrial Disability
Download this document if you are seeking Total Industrial Disability with your doctor.
Unfortunately, many unrepresented claimants do not get good legal advice, and as a result, do not sufficiently understand the legal standards pertaining to Permanent Disabilitystatus. Very often a worker may suffer a severe disability related primarily to pain, and often that pain strikes whenever the injured person attempts to do anything significant or perform any more-than-minimal exertion. Often, such terribly-disabled workers cannot conceive of working while under this condition, and yet the law may only find a Permanent Partial Disabilityin that worker’s claim. At once the worker is legally required to look for work (or potentially suffer the loss of benefits), and yet the worker cannot possibly conceive of performing in the competitive labor marketplace.
For instance, below are the legal criteria which doctors and judges must consider when the degree of a particular worker’s disability is adjudicated within back injury claims. Note that there are specific criteria for “Mild” disability, as well as for “Moderate,” “Marked,” and “Total” disabilities. Anything less than a “Total” disability will be considered a Partial Disability and the Work-Search requirement then applies
Of course, the Guidelines are only just that, they are not legal mandates. The Court cases are clear in stating that not all of the criteria within any category need be met in order for a judicial finding to be made within that category. (See, e.g. Matter of Barager-Dieter v Kelly Temporary Services, 1 A.D.3d 725, 726 [2003] quoting Matter of Floyd v Millard Fillmore Hosp., 299 AD2d 610, 612 [2002]). Indeed, even subjective complaints by the claimant within an otherwise substantially-supportive medical record, [i.e., a doctor agrees], may rise to the level of “substantial evidence” necessary to support a particular finding of disability. (See, e.g., Matter of Thomas v City of Albany School District, 307 A.D. 2d 664, 665 [2003] citing to Matter of Floyd v Millard Fillmore Hospital, supra, [2002]). Thus, a claimant’s doctor should feel free to state any medically reasonable degree of disability which is supportable by Guideline criteria. However, the doctor should also be prepared to defend his/her opinion in court, or in deposition, based specifically upon the criteria listed within the June 1996 version of the Workers’ Compensation Guidelines. This is true for back claims, shoulder claims, carpal tunnel syndrome claims, or any other type of Workers’ Compensation claim.
Document One
The Matter of Laurie Barager-Dieter v.
Kelly Temporary Services
Document Two
The Matter of Juanita Thomas v.
City of Albany School District
Document Three
The Matter of Susan Floyd v.
Millard Fillmore Hospital
