WHEN DOES VOCATIONAL AND FUNCTIONAL CONSIDERATIONS, SUCH AS A CLAIMANT’S AGE, EDUCATION, TRAINING, EXPERIENCE, ETC. HAVE AN INFLUENCE ON A CLAIMANT’S BENEFITS?

In <em>Matter of Canales</em> the claimant argued that her vocational factors should have been considered in combination with her medical impairment to determine the compensation rate for her temporary disability and as such would have rendered her unemployable. However, it was found that the 2007 reforms were not intended to change the Board’s reliance on the claimant’s actual earnings or degree of physical impairment as supported by the medical evidence to determine wage earning capacity for the purposes of WCL 15 (5) (a). In fact, the phrase “loss of wage earning capacity” was added to WCL §15(3)(w) with the specific intention to establish a new duration limit on non-schedule permanent partial disability benefits and was therefore relevant only to the determination of the duration of permanent partial disability benefits at the time of classification. Thus, vocational and functional factors should not be considered to determine the compensation rate for temporary disability. Matter of <em>Canales v. Pinnacle Foods Group LLC</em>, 117 A.D.3d 1271
However, it is well established that vocational factors are considered to determine loss of wage earning capacity in PPD claimants. What is less clear is the difference between claimants that returned to work and is consequently earning wages and claimants that did not return to work at the time of the classification.
In case of permanent partial disability when the claimant did not return to work, it is up to the WCLJ/Board to determine the claimant’s wage earning capacity. In <em>Matter Weinhart v Motors Holding</em>, 245 A.D.2d 577 (1997) The Board considers the nature and degree of the claimant’s disability, vocational opportunities and corresponding salaries available to the claimant, the claimant’s work restrictions etc. to determine the loss of wage earning capacity. Thus, for the non-working claimant vocational factors are considered to determine the loss of wage earning capacity and consequentially the wage earning capacity to calculate the weekly rate. “The loss of wage earning capacity will determine the maximum number of benefit weeks available pursuant to WCL §15(3)(w), and its inverse, the wage earning capacity will be used to calculate the weekly rate. <em>Matter of Buffalo Auto Recovery</em>, 2009 NY Wrk Comp 80703905.
However, it seems that things get murky when a claimant is working at the time of classification. When a claimant remains attached to the labor market a claimant’s wage earning capacity for a permanent partial disability, according to <em>Buffalo auto</em>, should be determined based on the difference between the claimant’s earnings at the time of his classification and his former average weekly wage. <em>Matter of Buffalo Auto Recovery</em>, 2009 NY Wrk Comp 80703905. Thus, according to <em>Matter of Buffalo</em>, there are two different methods for calculating the loss of wage earning capacity of a claimant with permanent partial disability, depending on whether the claimant was working or not.
However, in <em>Matter of Longley Jones</em>, the Full Board found that a distinction should not be drawn between a working and non-working claimants. It found that considering a working claimant‘s temporary sometimes partial job earnings, could ultimately lead to an unjust result between working and non-working claimants with exactly the same impairment. Thus, the Full Board did not favor a distinction between working and non-working claimants, but did emphasize that a claimant’s wages at the time of classification remains an important factor that should be considered with all the other factors in determining a claimant’s loss of wage earning capacity. <em>Matter of Longley Jones Management Corp,</em> 2012 NY Wrk. Comp. 60704882.
In <em>Matter of Baczuk</em> it was recently found that, where actual earnings during a period of disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more/less during such a disability period. Vocational and functional considerations must be considered with respect to loss of wage earning capacity and as such are only relevant as to the duration of a claimant’s permanent partial disability benefits. <em>Matter of Baczuk v. Good Samaritan Hosp</em>., 2015 N.Y. App. Div. LEXIS 7255. This decision is consistent with Buffalo Auto. It supports again a distinction between working and non-working claimants.