Loss of Wage-Earning Capacity
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In this archived video, the late Buffalo workers’ compensation attorney Jerry A. Gambino discusses loss of wage-earning capacity and how it can affect the duration of benefits in certain New York workers’ compensation claims. If you were injured at work and have questions about compensation for lost earning capacity, contact us to arrange a consultation.
Loss of wage-earning capacity, commonly called LWEC, is the reduction in an injured worker’s ability to earn wages because of a work-related injury or illness. In New York, an LWEC determination is generally made after the worker reaches maximum medical improvement and is found to have a non-schedule permanent partial disability.
Loss of wage-earning capacity is not determined solely by the medical impairment. The Workers’ Compensation Board may consider medical evidence concerning the injury and functional limitations together with vocational factors such as the worker’s age, education, work history, skills, training, English-language proficiency, and professional licenses or certifications.
Form VDF-1, the Loss of Wage-Earning Capacity Vocational Data Form, is used to provide relevant vocational information. Injured workers who may have a non-schedule permanent impairment and who have not returned to work are encouraged to complete and submit the form as early as possible. Whether the form and testimony are required in a particular claim depends on the circumstances and the directions of the Workers’ Compensation Board.
A Workers’ Compensation Law Judge reviews the medical and vocational evidence and determines the worker’s overall loss of wage-earning capacity. For qualifying non-schedule permanent partial disability claims involving an accident or date of disablement on or after March 13, 2007, the LWEC percentage helps establish the maximum number of weeks for which benefits may be payable. Permanent total disability is treated separately and is not subject to the same maximum duration.
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