Explainer: Wage Replacement Benefits in New York

This articles provides a basic overview of the wage replacement benefit – temporary disability – in New York workers’ compensation claims. A workers’ compensation claimant is entitled to medical care and wage replacement. If the worker is killed by the accident, his dependents may be eligible for death benefits.

As set forth more completely in my book, when an employee sustains are injury medical benefits must be provided immediately. WCL § 13. There is no waiting period before medical benefits must be provided. Wage replacement (as discussed below) has a waiting period before benefits must be provided. WCL § 12.

​Wage Compensation: Cash Benefits.

Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Rules: Compensation (money allowance – the wage replacement) is not paid to the injured employee for the first seven days of disability. NY WCL § 12. If the disability continues for 15 days or more, the compensation will be paid going back to the first day of time lost. The fourteen lost days do not have to be consecutive. If the disability is for fourteen days or less, then there is no wage replacement for the first seven calendar days, only the eight through fourteen days lost.

Claimants who are totally or partially disabled and unable to work for more than seven days receive cash benefits. The amount that a worker receives is based on his/her average weekly wage for the previous year.

Temporary Total Disability.

The following formula is used to calculate benefits:
2/3 x average weekly wage x % of disability = weekly benefit
This formula is subject to minimums ($150 per week) and a maximum (set by the Commissioner of Labor, currently $864.32 per week ).

Therefore, a claimant who was earning $400 per week and is totally (100%) disabled would receive $266.67 per week. A partially disabled claimant (50%) would receive $133.34 per week. The weekly benefit cannot exceed the following maximums, however, which are based on the date of accident:

Schedule of Benefits

Date of Accident Weekly Maximum (Total/Partial)
July 1, 1985 – June 30, 1990 $300 / $150
July 1, 1990 – June 30, 1991 $340 / $280
July 1, 1991 – June 30, 1992 $350 / $350
July 1, 1992 – June 30, 2007 $400 / $400
July 1, 2007 – June 30, 2008 $500 / $500
July 1, 2008 – June 30, 2009 $550 / $550
July 1, 2009 – June 30, 2010 $600 / $600
July 1, 2010 – June 30, 2011 $739.83
July 1, 2011 – June 30, 2012 $772.96
July 1, 2012 – June 30, 2013 $792.07
July 1, 2013 – June 30, 2014 $803.21
July 1, 2014 – June 30, 2015 $808.65
July 1, 2015 – June 30, 2016 $844.29
July 1, 2016 – June 30, 2017 $864.32

The benefit rate a claimant receives (determined by his/her date of injury) does not increase if new maximum benefits are adopted into law.

Temporary disability payments of 66.6% of the injured workers’ wages for the year in which the injury occurred or his occupational disease became manifest, subject to the annual maximum and minimum, are payable until she is able to return to work.

For accidents occurring after July 1, 2010 the rate is two-thirds the State Average Weekly Wage (SAWW) decided by the Commissioner of Labor. From July 1, 2016 to June 30, 2017 the rate is $864.32.

Temporary Partial Disability benefits

Degrees of partial disability are “mild” (25%), “moderate” (50%), and “marked” (75%). The degree of disability is equivalent to the loss of earning capacity.

Compensation is calculated as follows:
AWW * (Degree of Disability/150) = Rate of Compensation

This is the same formula as for total temporary disability compensation. The difference is that the degree of disability is the loss of earning capacity – which can be demonstrated by lost wages. However, most of the time the claimant will not be working, and the IME physician will state that the claimant has a “mild” or no temporary disability and the attending doctor will opine that the claimant is totally disabled. The claimant generally does not return to work, and the impasse is often resolved by the Court issuing a “tentative” disability rate.

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Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com