Board Bulletins and Subject Numbers

April 26, 2017

In 2007, omnibus workers' compensation reform legislation included maximum benefit weeks ("caps") of up to ten (10) years to permanent partial disability ("PPD") classifications under Workers' Compensation Law ("WCL") § 15(3)(w). The 2007 reforms included a safety net provision in WCL § 35(3), which was amended in the recent 2017 reforms (Part NNN, Chapter 59, Laws of 2017) effective April 10, 2017, to allow injured workers with loss of wage-earning capacity determinations of greater than 75% who would face extreme hardship to apply for further benefits by requesting a redetermination. .

WCL Section 35(3) Extreme Hardship Redetermination

Section 35(3) of the WCL provides:

In cases where the loss of wage-earning capacity is greater than seventy-five percent, a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits under paragraph w of subdivision three of section fifteen of this article, that the board reclassify the claimant to permanent total disability or total industrial disability due to factors reflecting extreme hardship. (Emphasis supplied.)

This subject number will describe how an injured worker may apply for a reclassification redetermination under WCL § 35(3), and the standard the Board will use to determine whether the injured worker has met the burden of proving an extreme hardship.

Qualifications

Extreme hardship redetermination requests seeking reclassification to permanent total disability or total industrial disability are limited as follows:

1. The injured worker must be classified with a permanent partial disability of greater than 75%; and
2. The injured worker must be currently receiving benefits under § 15(3)(w), and be within one year of the scheduled exhaustion of benefits; and
3. The request for redetermination must be filed with the Board on the appropriate Board form within the year prior to the scheduled exhaustion of indemnity benefits; and
4. The appropriate Board form is Extreme Hardship Redetermination Request (Form C-35), which must be complete and accurate.

Reclassification Standards

Workers' Compensation Law § 35(3) provides that qualified injured workers may request reclassification to permanent total disability or total industrial disability due to factors reflecting extreme hardship. The governor's memorandum in support of the workers' compensation reform bill¹ described the extreme hardship redetermination provision as one that "provides an exemption [from the PPD caps] for extreme financial hardship, while allowing judges to take into account factors in addition to claimants' income and other available resources."

An extreme hardship is a hardship that exceeds the usual or expected, and may include information about expected retirement income. In order to determine whether or not the injured worker's circumstances meet the standard of an extreme hardship, judges will consider the evidence provided in Form C-35 regarding the value of the injured worker's assets, monthly expenses, and household income from a spouse or other people in the household. Judges will also consider any other factors listed in the injured worker's application for reclassification.

Board Form C-35

Injured workers seeking an extreme hardship redetermination must file Form C-35 with the Board within the year that PPD benefits expire. Form C-35 requires the injured worker to provide financial information. It also provides room for the injured worker to list other factors that contribute to an extreme hardship.

Financial information includes, but is not limited to:

• Monthly expenses for housing, credit cards, living expenses, transportation, food, personal care, housing, utilities, and other expenses such as child/dependent care, taxes, student loans, child support, etc.;
• Household income, including income from a spouse or other people in the household, including any pension or net disability income, as well as Social Security Disability or retirement. If the Social Security Administration is applying an offset against Social Security Disability Insurance (SSDI), the applicant should indicate the full amount of SSDI that will be payable after the workers' compensation benefits cease.
• Please submit documentation for all expenses and household income listed on Form C-35. Incomplete applications may be delayed pending receipt of complete information.

The Board will review Form C-35 to ensure it is properly completed and then schedule a hearing.

¹L. 2007, ch 6 § 5, eff March 13, 2007.