Recent Board Panel decisions are providing guidance for employers to successfully avoid a total industrial finding when addressing Loss of Wage Earning Capacity. Indeed, there does not appear to be any basis under the law for an administrative law judge to find a total industrial disability. In Town of Fenton, Case Nos. G0501597, 90502069, G0087246, 2015 WL 7067972, at *6 (N.Y. Work. Comp. Bd. Nov. 5, 2015), the Board Panel noted “that the claimant’s request for a 100 percent loss of wage earning capacity finding is a request for a finding that does not exist. There is no provision that allows for an LWEC finding over 99 percent.” Thus, at most, an employer will be responsible for a 99 percent LWEC in cases not otherwise applicable for a permanent total disability. Nevertheless, carriers can be strategic in mitigating their damages in high exposure cases.
In approaching a loss of wage earning capacity determination, the record must be fully developed on the nature and degree of the claimant’s permanent impairment, work restrictions, age, education, language ability, and other relevant factors. The Board Panel has also noted that while the impairment rating may coincidentally be the same percentage as the ultimate finding of loss of wage earning capacity, the medical impairment rating is not to be used as a direct translation to loss of wage earning capacity. The Board will consider the individual facts and circumstances that exist for each particular claimant and will make an evidentiary determination based on the claimant’s medical impairment and functional abilities, as well as vocational and other non-medical factors.
While the cases specifically state that no two claimants are likely to share the same exact set of factors, and the loss of wage earning capacity finding for one claimant is not dispositive of a loss of wage earning capacity finding for a different claimant, recent decisions are helpful in crafting arguments to avoid a high loss of wage earning capacity finding or to reverse a total loss of wage earning capacity finding.
In a recent decision in New York Paving Inc., G1296062, 2017 WL 3667995 (N.Y. Work. Comp. Bd. Aug. 11, 2017), the Board Panel reversed a total industrial finding for a 47-year-old laborer. This case was established for neck and back injuries. During trial, the claimant testified that he had completed the eighth grade and used a flip phone. In addition, the claimant was found to have a Class 4, Severity Ranking E.
On appeal, the Board Panel modified the law judge’s decision to a 70 percent Loss of Wage Earning Capacity. In support of its reversal, the Board Panel noted that the claimant did not prove that he was incapable of salaried employment. Indeed, the decision notes that while the claimant primarily worked heavy labor in the cement industry, the claimant was capable of learning a different type of work. The Board Panel noted that the claimant was young and capable of challenging work. In defining challenging work, the Board Panel noted that the claimant could learn how to be familiar with computers, the Internet, and other sedentary work.
In defending cases approaching permanency, carriers can mitigate their exposure to avoid high and total loss of wage earning capacity findings even with a high impairment ranking. To successfully reduce loss of wage earning capacity, the carrier and defense counsel should focus on the claimant’s ability to find sedentary work within their work restrictions. In high exposure cases, use of a vocational expert is particularly helpful in identifying real employment opportunities for each individual claimant. These employment opportunities will be very persuasive in supporting an argument for a lower loss of wage earning capacity.