Loss of Wage Earning Capacity
Loss of Wage Earning Capacity (“LWEC”) is a standard utilized by the Workers’ Compensation Board to evaluate non-schedule impairments at the time of permanency. Non-schedule
impairments include disabilities of the neck, back, pelvis and pain-based conditions.
The LWEC will determine the amount of your lost income benefit (unless you are working at reduced earnings) and how long you collect that lost income benefit into the future (assuming that you were ill or injured on or after March 13, 2007). You are entitled to medical care for the covered conditions for the rest of your life.
In December 2012, Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity were implemented. These Guidelines brought greater attention to LWEC and implemented a new severity rating for permanent impairments that is largely undefined. Thus, LWEC has been hotly contested. The Guidelines are found at http://www.wcb.ny.gov/content/main/hcpp/ImpairmentGuidelines/2012ImpairmentGuide.pdf
LWEC must be determined based on medical and vocational factors. To illustrate, a construction laborer with a bad back should have a greater LWEC than a lawyer with a bad back. The LWEC factors include (but are not limited to) the degree of permanent mental or physical disability, functional limitations, prior work history, work skills, education and vocational aptitudes. There is NO simple formula for determining LWEC.
Your doctor must complete a new form http://www.wcb.ny.gov/content/main/forms/c4_3.pdf when determining permanency. Your doctor’s failure to complete this form could hurt your case. Thus, we highly recommend that you work closely with our office to ensure this form is completed at the appropriate time.
You also may be required to undergo a Functional Capacity Evaluation (“FCE”) to determine functional loss. A FCE can be requested by your doctor or by the Defense Medical Examiner (“DME”).
Unless we tell you otherwise, you must continue to look for work while we work to resolve the amount of your LWEC. If you are unable to find work despite a diligent job search and/or working with a vocational rehabilitation program (such as ACCES-VR), this will help us argue for a higher LWEC.
Unless and until a Judge decides your LWEC, it is impossible for us to tell you a definite LWEC. Thus, each case will involve a degree of risk. For that reason, we often try to reach a fair settlement of the issue. You are never required to settle on this issue, however, we will explain the risks and rewards best that we can.