Temporary Disability Rate

New York’s Maximum Rate Rises Effective Today

New York’s maximum compensation rate – for temporary total disability and permanent disability – increases effective July 1st to $934.11. The new, higher rate will be in effect until June 30, 2020 and applies to all cases with dates of loss after today (after July 1, 2019). On Monday, July 15th we will be holding a question-and-answer webinar on this change to discuss how this impacts claims and exposures (register here to attend live via webinar at 12PM or 3PM EST).

How is the New York Maximum benefit Rate Calculated?

The maximum weekly benefit rate for workers’ compensation claimants is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor (Workers’ Compensation Law §§ 2(16);15(6)).

The Department of Labor reported to the Superintendent of the Department of Financial Services that the New York State average weekly wage for 2018 was $1,401.17. Accordingly, the maximum weekly benefit rate is $934.11 for compensable lost time for workers’ compensation claims with dates of accident during the period from July 1, 2019 through June 30, 2020.

This will have an impact on lost-time wage compensation (temporary disability benefits) as well as permanency benefits (both Loss of Wage Earning Capacity and Schedule Loss of Use Awards).

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 $934.11 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
July 1, 2017 – June 30, 2018 $870.61
July 1, 2018 – June 30, 2019 $904.74
July 1, 2019 – June 30, 2020 $934.11

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, 2019 to June 30, 2020 the rate is $934.11.

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.

Impact on Loss of Wage Earning Capacity and Scheduled Loss of Use Awards

The new, higher maximum rate also applies to Loss of Wage Earning Capacity Awards and Scheduled Loss of Use Awards. This impacts exposure to employers and carriers by automatically increasing the benefits available to a worker injured after July 1, 2019.

Join In the Learning!

Register for our monthly webinars on New York workers’ compensation law, by clicking here. This month (July 15, 2019) our next webinar will explore temporary disability benefits and provide practical advice to adjusters and risk professionals. Register here!

Defending Employers in New York, New Jersey, and Longshore.