You went back. Not to what you were doing before — lighter work, or fewer hours, or a different job entirely because the old one is not possible now. The paycheck is smaller than it used to be, the weekly compensation checks stopped, and nobody sat you down and explained what replaced them.
Something should have. It is called a reduced earnings benefit, and a great many people who are entitled to one never receive it because they assumed that going back to work ended the claim.
The formula
Section 15(5) of the Workers’ Compensation Law says it in one sentence: “In case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be two-thirds of the difference between the injured employee’s average weekly wages before the accident and his wage earning capacity after the accident in the same or other employment.”
Two figures, one subtraction, multiply by two-thirds. What you were making before, less what you are making now, two-thirds of the gap.
By way of illustration: if your average weekly wage was $1,200 and you are now earning $800 a week on light duty, the difference is $400, and two-thirds of that is roughly $267 a week. That is money that should be reaching you the entire time the reduced earnings continue — not a lump sum, not a favor, and not something that stops because you are back at work. Your own numbers will differ, and the statutory maximum for your date of accident caps the result.
What “wage earning capacity” means, and why it matters if you are not working
Section 15(5-a) answers the obvious follow-up question. Wage earning capacity in a partial disability case “shall be determined by his actual earnings.”
So when you are working, the arithmetic is straightforward: what is on your pay stub is the number.
The rest of that subdivision is the part worth knowing about. Where the worker has no actual earnings, the Board “may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of his former full time actual earnings,” with regard to the nature of the injury and the physical impairment.
Read that carefully if you are partially disabled and out of work. It means the Board can attribute an earning capacity to you that you are not actually earning. That is one of the reasons labor market attachment matters so much for someone with a partial disability who is not working: the alternative to showing a genuine job search is having a number assigned to you.
Everything is built on the average weekly wage
Look at the formula again. The first figure in it is your average weekly wage, and if that number was set too low at the beginning of your case, every reduced earnings check you receive for the next several years is too small by two-thirds of the error.
This is the quietest way money goes missing in a workers’ compensation case. Nobody announces it. There is no letter. The wage was computed from incomplete payroll, or it left out overtime, or it ignored a second job, and the consequence arrives $40 a week at a time for years.
If you are receiving reduced earnings and you have never checked how your average weekly wage was calculated, that is the single most valuable hour you could spend on your own case.
The days you miss still count
Going back to work does not mean every week looks the same. There are treatment days, physical therapy appointments, the bad week after you overdid it, the morning you could not get out of bed.
Time lost from work because of the injury is compensable, and the Board has a name for it — intermittent lost time. The problem is never entitlement; it is proof. Nobody remembers in October which Tuesdays they missed in March.
Keep a running note of every day and every partial day you lose to the injury, as it happens, with the reason. A calendar entry takes ten seconds and is worth more than an affidavit written a year later.
It moves when your pay moves
Reduced earnings is not a fixed award. It floats on the gap between the old wage and the current one, which means it changes as your earnings change.
Pick up hours and the benefit shrinks. Get a raise and it shrinks further. Lose the light duty job and the picture changes again. Move to a better-paying job than the one you had before the injury and it ends, which is the outcome everybody actually wants.
What this means practically is that your earnings have to be reported accurately and currently. Reduced earnings paid on stale figures gets reconciled eventually, and an overpayment discovered late is a worse conversation than an adjustment made on time.
Before classification and after
Section 15(5) is the temporary rule — it governs while your condition is still changing.
Once you reach maximum medical improvement and the case is classified with a permanent partial disability, you move onto different track: a finding of loss of wage-earning capacity, which sets both the rate and a capped number of weeks. That is a different calculation with a different set of arguments, and it is the point at which the value of the whole case gets decided.
Knowing which side of that line you are on tells you what the fight is about.
A provision worth knowing about after a schedule award
There is a lesser-known benefit sitting in Section 15(3)(v). Additional compensation is payable for impairment of wage earning capacity for a period after an award under the schedule loss of use paragraphs terminates, where there has been loss or loss of use of fifty per centum or more of a member and the impairment of earning capacity is due solely to it.
In plain terms: a serious schedule loss, an award that runs out, and continuing wage impairment caused by that injury and nothing else. It does not come up in most cases and it is easy to miss in the ones where it applies.
One footnote that matters if you also receive Social Security disability: these particular payments are treated differently on the federal side, because the provision carries its own reverse-offset language. Most New York compensation reduces your Social Security check. This one is treated as not offsettable, which is unusual and worth raising with whoever handles that side.
To estimate your reduced earnings benefit, use the “Back to work for less” tab of our workers’ comp benefits calculator.
Reduced earnings benefits start with reporting your return to work promptly. See going back to work? You must report it.
Frequently asked questions
I went back to work and my checks just stopped. Is that right?
Total disability payments stopping when you return to work is normal. Nothing at all arriving afterward, when you are earning less than you did before because of the injury, frequently is not. Those are two different things, and the second one is worth a phone call.
Does taking a lower-paying job hurt my case?
Generally the opposite. Working within your restrictions answers the labor market attachment question outright and demonstrates good faith, while the wage difference is what the benefit is calculated on. What does damage is going back to work that exceeds your restrictions, or not reporting the earnings.
My employer offered light duty at lower pay. Do I have to take it?
That question has real consequences either way and depends on whether the offer is genuinely within your medical restrictions. Light duty offers are their own subject, and worth reading before you answer the employer.
I am working two jobs and only lost one of them.
Then the calculation needs to account for both, on the earning side and in how your average weekly wage was set in the first place. Concurrent employment is one of the most commonly botched parts of a wage calculation, and it is worth checking rather than assuming somebody handled it.
How long can reduced earnings continue?
While the disability is temporary, as long as the reduction in earnings caused by the injury continues. Once the case is classified, the permanent partial rules and their capped number of weeks take over. The practical answer for most people is longer than they expect, which is exactly why an incorrect average weekly wage is so expensive.
What should I keep?
Every pay stub since you returned, a record of the days you missed and why, and whatever the carrier has sent you about your benefit rate. If you only do one of those three, do the pay stubs.
If you are back at work for less
Bring your pay stubs and whatever the Board has sent you and we will work out whether what you are receiving matches what the formula produces. Call 718.701.2776 or 800.310.5520. The consultation costs nothing.
This page describes New York law in general terms, and the illustration above is only an illustration. It is not legal advice about your claim, and reading it does not make us your attorneys.
Talk to a New York workers’ compensation attorney
The Law Offices of Frank J. Dito, Jr. handles workers’ compensation claims from the office on Staten Island, for injured workers throughout the five boroughs and across New York State.
Call 718.701.2776 or 800.310.5520. If we don’t recover money for you, we don’t get paid.
