In addition to the bill defining temporary total disability, there are at least two other pending bills pending in the legislature that, should they become law, will significantly increase workers’ compensation costs in New York and undo much of the compromise reached in the 2007 workers’ compensation reform package.
Bill A1220-A/S1024 would amend the definition of permanent total disability under WCL §15(1) to include a claimant’s inability to perform “the full range of sedentary work, or approval for federal Social Security Disability benefits as a result of compensable accident or occupational disease.” This bill is currently pending in the New York State Senate Rules Committee. This bill would further serve to destroy the durational limits (caps) on permanent partial disability benefits by easing the way for many more claimants to be classified with a permanent total disability. The caps on permanent disability benefits only apply to permanent partial disability. This bill would allow those claimants who qualify for federal Social Security benefits to obtain permanent total disability benefits. Additionally, the bill includes the vague language "the full range of sedentary work,” which would suggest that those claimants alleging an inability to perform all components of sedentary work would qualify for permanent total disability.
Bill A1098/S1023 would amend WCL §35 (the “Safety Net” provisions) to define “extreme hardship” and allow the extreme hardship provision to apply to claimants with a loss of wage earning capacity greater than 50%. Presently, the extreme hardship provision would only apply to claimants with a loss of wage earning capacity greater than 75%. Whether or not a claimant has an “extreme hardship” allowing reclassification with a permanent total disability or total industrial disability is currently decided on a case-by-case basis by the Board. This bill would define “extreme hardship” to allow it to apply where the claimant’s income from Social Security disability benefits and disability would be less than fifty percent of his or her average weekly wage upon termination of permanent partial disability benefits, if the claimant will be unable to meet expenses for himself or herself and any dependents upon termination of permanent partial disability benefits, where additional medical, functional, or vocational factors arose after classification that further eroded the claimant’s wage earning capacity, or where the claimant’s income would be below the federal poverty guidelines upon the end of his or her permanent partial disability benefits.
Without a definition of what “expenses” claimants are unable to meet for themselves and their dependents, nearly all claimants could find a way to qualify for extreme hardship reclassification. Also, given that age is an aggravating factor in loss of wage earning capacity, every claimant will be arguably be able to qualify for extreme hardship reclassification for the simple fact that they are older upon the termination of their permanent partial disability benefits than they were when they began.