Hamberger & Weiss LLP

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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