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  1. #1
    Join Date
    Apr 2009
    Posts
    5

    Default Calculating Settlement

    My wife was injured march of 2008 and injured her ankle. She recently seen her doctor and reached MMI. They said it was a 20% loss of use to the foot. No whole body was listed. She has been collecting comp since the injury but shortly after it started it was cut in half because they classified it as moderate. She went to court today with her so called lawyer and they were going to stop payments but they didn't have the comps dr's report so they are continuing to pay a reduced amount of $100 a week until the next hearing in june. Her lawyer said this is because this is all the injury is worth. The comp site shows a number of weeks for the percentage of loss. How many weeks of pay and at what rate do they calculate this from? Her lawyer is a total joke and could not explain this but seemed to think that was all it was worth. I would appreciate some advice before going wasting time talking to another worthless lawyer. Thanks

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,017

    Default Re: Calculating Settlement

    ...it was a 20% loss of use to the foot
    Her weekly benefits are adjusted because the rules allow the ER/IC to pay less if the disability is less..during the time of treatment /recovery..
    2/3 x average weekly wage x % of disability = weekly benefit

    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:
    A scheduled loss provides for a pre defined number of weeks indemnity based on the % of loss...
    Schedule Loss
    This is a special category of Permanent Partial Disability, and involves loss of eyesight or hearing, or loss of a part of the body or its use. Compensation is limited to a certain number of weeks, according to a schedule set by law.

    If the work related accident or date of disablement occurred on or after March 13, 2007, benefits are payable for a maximum number of weeks as determined by the claimant's loss of wage-earning capacity. The maximum number of weeks is set forth in statute as follows:
    (the chart provides for 250 weeks indemnity for your wifes 20%)
    250 weeks for loss of wage earning capacity of greater than 16% thru 30%

    http://www.wcb.state.ny.us/content/m...ilityClass.jsp
    You can also settle the claim by a Section 32 Waiver Agreements, and info on that is here...http://www.wcb.state.ny.us/content/m.../section32.jsp
    Basically a Section 32 is a C&R, you accept a lump sum negotiated between you and the IC, and release them from all future liability for the injury. Never to re-open. These are usually taking into consideration the dollar amount of your indemnity, and probable need of additional treatment... but it's actually ''new money'' for your consideration to walk away.

    Her lawyer said this is because this is all the injury is worth.
    Her lawyer is a total joke and could not explain this but seemed to think that was all it was worth. I would appreciate some advice before going wasting time talking to another worthless lawyer.
    Attys handling comp claims do this every day, and pretty much know the value of a claim based on the rating, and experience. There isn't much an atty can do to change a statute, possibly the rating could change if the treating physican can change his/her mind, or there is additional medical evidence to provide for a higher rating... could also be lower.

    It isn't like a PI claim where you can negotiate you way into a larger settlement... the IC is free to pay out the indemnity based on the rating, and leave the medical open. Sometimes it's pretty much cut & dried.
    Another atty won't likely change things...and if you sign with another atty, if you can find one to take the claim...there will still be a fee split between them. Not enough money here for another atty to come on board.

  3. #3
    Join Date
    Apr 2009
    Posts
    5

    Default Re: Calculating Settlement

    Thanks for the info. I used your calculations pay X 2/3 X rate of disability X 250 wks, and came out about $2500.00 short of whats been paid. Also and added thing is she just got the report from their Dr and he said she has a 32.5% disability rating. I am assuming they would split the difference and that would make it about a $7000 difference. Not alot but if thats whats owed I don't want any less. Am I correct in my assumptions and does any one Know a good lawyer in the Geneva, NY area?

  4. #4
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,017

    Default Re: Calculating Settlement

    If the rating is 32.5%, 250 weeks, X 32.5 = 81.25 weeks indemnity.
    Take the TD rate, times X 81.25 weeks and that should provide approx the value of the PPD indemnity award.

    pay X 2/3 X rate of disability X 250 wks,
    To get the TD rate, 2/3 x average weekly wage x % of disability = weekly benefit During the treatment/recovery period, the doctor determines approx how much the injury as affected the ability to work... eg. your injury affects you about 50%, so your weekly TTD rate is reduced by that amount.

    Remember you said...She has been collecting comp since the injury but shortly after it started it was cut in half because they classified it as moderate...

    You have to have the weekly rate of TD, times the number of weeks indemnity due to calculate an award of PPD.
    The number of weeks is the max allowed for the body part, or whole person, times the rating % times the weekly TD rate. I don't know if your calculations are correct or not... don't know the weekly rate.

    I don't think I would 'assume' anything here... you know what 'assume' means, I'd hate for that to happen.

  5. #5
    Join Date
    Apr 2009
    Posts
    5

    Default Re: Calculating Settlement

    Thanks Again. Rate of pay was $429 wk. So if I follow you she has probally been overpaid at this point?

  6. #6
    Join Date
    May 2009
    Posts
    2

    Default Re: Calculating Settlement

    20% SLU of the foot = 41.0 weeks of the maximum partial compensation rate (same as total disability rate) minus lost wage payments already made.
    If the AWW is $429.00/week, comp rate is $286.00/week.
    41.0 wks * $286.00/week = $11,726 minus what the carrier has already paid for lost wages.
    Based on your wife being out of work since 3/08, she probably won't receive much money. The benefits were probably continued at $100/week as the issue of SLU will be resolved shortly. If the carrier had already paid more than $11,726, the benefits would have been suspended.
    Easy way to find out about how much she will get is to look at the last C-8/8.6 (16; C) for previously paid and add in was she has been paid since, then subtract it from $11,726.
    *** The 250 weeks that was referred to in other post is wrong. This is an SLU (Schedule Loss of Use) and not a permanent disability rating (PPD or % of wage earning capacity).

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