Loss of Wage Earning Capacity 

By William Turley, Esq. 

Loss of wage earning capacity, or LWEC, is a determination made by the Workers’ Compensation Board in cases where a worker has a permanent partial injury as a result of his or her work-related injury. It is meant to show how the permanent injury affects the injured worker’s ability to earn a living. It applies to certain types of permanent injuries, typically those involving the spine, head, pulmonary and cardiac systems. It can also be applied in cases of psychiatric disability, as well as certain types of extremity injuries (hands, feet, arms and legs), usually those involving complex nerve damage. The percentage of loss of wage earning capacity fixed by the Workers’ Compensation Board determines how far into the future an injured worker may receive weekly cash benefits before they run out (anywhere from four to ten years). In cases where an injured worker is found to be permanently totally disabled (100% loss of wage earning capacity) the cash benefits are paid for the remainder of the injured workers’ life.

 Why Do I Have to Wait For Benefits?

 Erin McCabe, Esq.

If you are injured on the job in New York the workers compensation insurance carrier is required to pay for lost earnings that are related to the disability, but you may not receive benefits immediately.   No compensation is payable to the injured worker for the first seven calendar days when they are disabled.  After the seventh day, the carrier is responsible for payment.  If the injury keeps the injured worker out of work for fourteen days or more, then the injured worker will be entitled to receive payments back to the first day out of work due to the disability.  The law requires that the first payment to the injured worker due to the disability is to be mailed on or before the 18^th day of disability or within ten days after the employer has knowledge of the accident, whichever is later.

Why the delay in payments?  To eliminate the carrier having to make payment on cases with little lost time and potentially minor injuries.

It is possible that your employer may pay you when you begin to lose time from work regardless of the waiting period.  However, that is at the employer’s discretion, or per your contract with the employer.  You may be able to use your own paid time off if it is permitted by your employer or by contract.  However, if you use any accumulated sick or paid time off you may not receive it back.  The employer would have to request reimbursement from the insurance carrier for any money paid to you.  If the employer does not request reimbursement, you will not recover your time.

Form Over Substance - The Claimant Speaks 

By Daniel Elias, Esq.

I was injured on the job and I have a Worker’s Compensation Claim.  I am a woman who is over 60 and I suffered a bad fall at work.  The Worker’s Compensation process has been very frustrating for me.  The Board has decided that form is more important than substance and it nearly derailed my claim.   

Several months ago, I attended a hearing.  I was supposed to produce medical reports of permanency from my doctors.  I and my attorneys contacted the offices and arranged for appointments.  We had all but one.  On the last day before the hearing I was able to get the needed form from my orthopedist.   I thought I was good.  When we went to the hearing, the Law Judge pointed out that the doctor had only sent the first and third pages of the C – 4.3 medical form.  This was the only doctor who was treating my Knees that had been injured.   The Insurance company representative was not even complaining!  But the Law Judge decided that the report did not comply with the form and therefore the doctor would be precluded from testifying regarding my permanent condition. 

What was the rush? We were setting it down for deposition testimony of three other doctors and weren’t coming back to Court for over 2 months.   My Lawyer asked the Judge to let my orthopedist testify if the 2^nd page was produced within a few days.  The senior law judge said “NO”!    I got the missing page and it was filed with the Board within 2 days.  What good is an old woman who can’t walk?  Wouldn’t the judge want to know the status of my knees in determining my disability?

Attachment to the Labor Market

By Erin McCabe, Esq. 

If your doctor finds that you have a 100% disability under the Workers’ Compensation Law then you have no obligation to look for work and are entitled to monetary benefits.  The moment your degree of disability falls below 100% in order to continue to be “attached to the labor market” and entitled to benefits, you have an obligation to show a good faith effort to find employment and to look for work within your medical restrictions.

Pursuant to case law attachment to the labor market can be demonstrated by credible documented evidence showing that you are actively seeking work within your medical restrictions through one or more of the following methods of seeking employment: