Court Again Finds Vocational Factors Irrelevant to Compensation Rate
In
Franklin v. New England Motor Freight, decided 8/25/16, the Appellate Division, Third Department, re-affirmed its previous holding in
Canales v. Pinnacle Foods Group, LLC, 117 A.D. 3d 1271 (2014). The facts of this case, quite to similar to those in
Canales,
involved a claim for temporary rather than permanent disability awards.
Nonetheless, the Court’s language indicates that the same rule applies
for “both temporary and permanent partial disabilities.” In a nutshell,
the definition of “wage earning capacity” in WCL §15(5-a) (which sets
the weekly rate for non-working claimants) includes no reference to
vocational factors. The Court reiterated previous decisions that
vocational and functional considerations such as a claimant’s age,
education, training, experience, restrictions and related factors are
relevant only for setting the duration of a claimant’s permanent partial
disability awards. Indemnity rates, based on wage earning capacity,
are to be set at a reasonable level not greater than 75% of the
claimant’s previous full-time earnings, having due regard to the nature
of his or her injury and physical impairment. It remains to be seen
whether the Board will finally acknowledge that the court meant what it
said and said what it meant in
Canales and now
Franklin, rather than continuing to insist that a different rule applies for setting permanent partial disability award rates.
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