Worker Gets Reclassification to Total Disability Based on Showing of Extreme Hardship

Tuesday, October 25, 2022 | 0

A New York appellate court ruled that an injured worker was entitled to reclassification to permanent total disability based on his demonstration of extreme hardship that would be caused by the termination of his indemnity benefits.

Case: Matter of Vicente (Finger Lakes DDSO), No. 533946, 10/06/2022, published.

Facts and procedural history: In May 2007, Elliot Vicente suffered injuries while working for Finger Lakes DDSO. Vicente later established a workers' compensation claim for injuries to his right shoulder and low back.

In 2009, pursuant to a stipulation of the parties, Vicente was classified with a permanent partial disability and 87.5% loss of wage-earning capacity, entitling him to 475 weeks of indemnity benefits.

In August 2018, shortly before the expiration of those indemnity benefits, Vicente filed an extreme hardship redetermination request pursuant to Workers' Compensation Law Section 35(3).

Section 35(3) provides that in cases where the loss of wage-earning capacity is greater than 75%, a claimant may request reclassification to permanent total disability or total industrial disability due to factors reflecting extreme hardship.

A workers’ compensation law judge granted the application and reclassified Vicente with a permanent total disability due to factors reflecting extreme hardship.

The Workers' Compensation Board affirmed.

Analysis: The Appellate Division’s 3rd Department explained that Section 35(3) provides "a possible safety net" for claimants who, having sustained a permanent partial disability and having not returned to work, face "extreme financial hardship" following the scheduled exhaustion of their indemnity benefits.

In evaluating whether a claimant qualifies for the extreme hardship exception, the board considers the claimant's assets, monthly expenses, household income — including any spousal or family support — and any other relevant factor, the court said.

Here, the court noted, Vicente demonstrated that his monthly income included Social Security disability benefits and other imputed income derived from public assistance programs, and his monthly expenses. The record also included a letter from the Social Security Administration advising that, after a deduction for his medical insurance premiums, Vicente’s remaining monthly disability benefit was only $24. Vicente testified that this amount was it was then offset by the workers' compensation indemnity benefits that he was receiving.

The court also noted that Vicente has a high school diploma and an employment history prior to his injuries of working at a warehouse, doing mechanical and body/fender repair, driving a truck, operating heavy equipment and providing direct patient care. Vicente was not a candidate for vocational training, and he had not been successful in finding new work within his medical restrictions.

Given the “notable shortfall of claimant's financial ability to meet his monthly obligations once his workers' compensation indemnity benefits are discontinued, and considering his inability to obtain new employment in order to produce additional income, claimant demonstrated extreme hardship warranting a reclassification,” the court ruled.

Disposition: Affirmed.

To read the court’s decision, click here.