Workers’ Compensation Law § 15 [6] [a] sets the minimum rate of compensation for disability – $150 per week since May 1, 2013. There are three scenarios, however when payments may be made at less than the minimum rate.
First, if the claimant’s average weekly wage is less than the minimum rate of compensation the claimant’s total disability rate will be equal to the average weekly wage – even if that is less than the minimum rate.
Workers’ Compensation Law § 15 [6] [a] sets the minimum rate of compensation for disability – $150 per week since May 1, 2013. There are three scenarios, however when payments may be made at less than the minimum rate.
First, if the claimant’s average weekly wage is less than the minimum rate of compensation the claimant’s total disability rate will be equal to the average weekly wage – even if that is less than the minimum rate.
Second, if a working claimant’s actual earnings are less than the average weekly wage but differ from the average weekly wage by less than the minimum rate, the claimant receives the difference between the two figures – commonly referred to as Actual Reduced Earnings.
The third scenario is not new but had lain fallow until recently. It occurs when a non-working claimant’s wage-earning capacity plus the minimum rate would exceed the average weekly wage. In that case, the rate of compensation must be reduced to the difference between the average weekly wage and the claimant’s wage-earning capacity even if that reduction means a payment below the minimum rate.
Consider this example – taken from a 2017 Board Panel decision.
The claimant had a work-related injury on 8/8/2016 – when the minimum compensation rate was $150. The average weekly wage was set at $242.44. The medical evidence agreed that the claimant had a mild (25%) temporary partial disability. However, the parties disagreed on the rate of compensation that should be awarded. The claimant wanted the minimum rate of $150. The self-insured employer wanted the difference between the average weekly wage and the claimant’s 75% wage earning capacity ($181.83). The Board Panel awarded $60.61 because “the sum of the claimant’s 75% wage earning capacity and the minimum rate of $150.00, yields an amount in excess of the claimant’s $242.44 average weekly wage ($311.83)” a result prohibited by the limiting language of § 15 [6] [a].
Awards at a rate less than the minimum rate are only possible if the average weekly wage is less than $600. Call us if you have a case you think might qualify.
