As you know, I participated in a telephone conference regarding this matter on 07/28/17. You and I were present as were Rose Mary Newton and Tracy Perry from the Town of Colonie.
As you know, this case is established for an injury to the back with an average weekly wage of $1,012.85. We previously defeated the claimant’s efforts to move this case to a later date of accident with a higher average weekly wage and a higher rate of compensation. We have also converted his payments from temporary total disability to temporary partial disability as of February 2017.
We are presently litigating the issue of permanency. The claimant has an IME from Dr. Kaufman, which found a permanent total disability. We recently deposed Dr. Kaufman and he…show more content… The claimant’s counsel is obviously attempting to show a permanent total disability.
We have a hearing coming up in this case on 08/02/17. I will be handling that hearing and at that time we agreed I would make a motion to preclude Dr. Kaufman’s report. If that report is precluded then the only evidence of permanency will be the 5-G rating from Dr. Seigel.
If we cannot agree on a loss of wage-earning capacity we still have to take testimony from the claimant to see whether there are any factors which would aggravate or mitigate his disability. The claimant has largely been a heavy truck or equipment mechanic. He has a high school education and some technical skills. Some of this might be considered neutral or even aggravating.
We agreed that prior to the next hearing or at the time of the next hearing, we would try to negotiate a resolution with the claimant’s counsel. We agreed that we could offer a 75% loss of wage-earning capacity which would be equal to 400 weeks of compensation or we could go up to 80% loss of wage-earning capacity which would be equal to 425 weeks of compensation but only if the claimant would agree to waive any potential claim under the safety net provisions of the Workers’ Compensation Law.
We really did not discuss it at the conference but you and I had discussed the issue of labor market attachment. I see the issue was raised by us at the hearing on 05/31/17. The Judge at that time ruled the issue was premature since the