Redetermining Benefits Based on ‘Extreme Hardship’ in N.Y.

Do You Know the Rule?

In New York, a claimant receiving permanent partial disability benefits may seek reclassification based on an extreme hardship. If the request is granted, the claimant may be classified as having a permanent total disability or total industrial disability.

If the claimant succeeds, the employer or carrier will be on the hook for continuing to pay benefits that might have ended earlier. For that reason, employers and carriers should understand what hoops a claimant must jump through to make the request and what factors may support or weaken the request.

Who is eligible to request reclassification?

Where a claimant has lost more than 75 percent of wage-earning capacity, she may request that the New York Workers’ Compensation Board reclassify her to permanent total disability due to factors reflecting extreme hardship.

When must the claimant request reclassification?

The claimant must request the change within the year prior to when the benefits are scheduled to terminate.

What are the requirements for filing a request?

1. The claimant must be classified with a PPD of greater than 75%;
2. The claimant must be within one year of the scheduled exhaustion of benefits; 
3. The request must be filed with the Board on the correct form (Form C-35) within the year prior to the scheduled exhaustion of benefits; and
4. The Board form must be complete and accurate.

What factors does the Board (and courts) consider?

When determining whether or how to oppose such a request, employers should know the factors that tend to sway decisionmakers one way or the other.

Stay current, stay compliant with Simply Research

To ascertain whether a claimant has an extreme hardship, decisionmakers consider such factors as the claimants:

• Assets
• Monthly expenses
• Household income
• Any other relevant factors, such as the claimant’s:
  • Age
  • Education
  • Employment prospects
  • Medical restrictions

How should an employer or carrier immediately respond to a request for reclassification?

There is no precise method for responding. Of course, employers and carriers should always check with their attorney. Generally, before disputing or granting a request, employers and carriers should consider taking the following steps:

1. Ensure the claimant has made her request using the correct Board form. 
2. If the claimant used the right form, determine whether the request is timely (that it was made within a year of the exhaustion of the claimant’s current benefits).
3. If the request was timely, review the form, including the sources of income and expenses, and any hardship factors the claimant cites.
4. Compile a list of all factors that may demonstrate that claimant is facing extreme hardship (claimant is elderly, sick, and lacks education), or is not facing extreme hardship (claimant is young, healthy, and qualified for a variety of jobs).

Share This Article: