# Greg Lois on LWEC.

Calculating exposure in New York for permanent partial disability (non-scheduled losses) is supposed to be simple:

Rate
x Number of Capped Weeks = Exposure (plus the cost of medical)

The number of weeks ranges from a minimum of 225 weeks (for Loss of Wage Earning Capacity of 15% or less) to a maximum of 525 (applicable to Loss of Wage Earning Capacity of 95% or more.)

The tricky part is figuring out the Rate and the Number of Capped Weeks in the formula. The answer is that both the Rate and Number of Capped Weeks is dependent on a concept called “Loss of Wage Earning Capacity.”

The concept from 50,000 feet.
Once the claimant has reached maximum medical improvement (MMI), determining a worker’s loss of wage earning capacity (LWEC) is a three part analysis:

• Evaluation and ranking of medical impairment. This is done by a doctor. The Board has issued “Guidelines” and a special Form (Form C-4.3) to be used by the Doctor in evaluating the impairment.
• Medical evaluation and determination of functional ability/loss (functional assessment). This is also (strangely) done by a doctor).
• Consideration of vocational factors. This includes prior work history, education, skills, and aptitudes.

After factoring these three inputs (impairment, function, and vocational factors) the Judge of Compensation is expected to come up with a number, expressed as a percentage. This number we shall call “Loss of Wage Earning Capacity” and it will be used to plug into a formula and arrive at two things: first, a dollar figure, and second, a number of weeks.

Here it is again:

Rate x Number of Capped Weeks = Exposure (plus the cost of medical)

Both the Rate and the Number of Capped Weeks are derived from LWEC, which itself is derived from the impairment, function, vocational factors.

This formulation is meant to imply that there is a straightforward application of relatively “objective factors” which will be used to determine disability. In truth, arriving at LWEC is not straightforward at all. There is no “weighting” of the various factors, and no clear “formula” to apply in considering the various inputs.

Impairment vs. Disability
Impairment is a purely medical determination made by a physician. Impairment is defined as an anatomic or functional abnormality or loss (“handicap”). Impairment requires a complete medical examination and accurate objective assessment. Impairment is not supposed to be taken at face value and converted into a “percentage” of disability.

The 2012 Disability Duration Guidelines attempt to provide a uniform process for evaluating impairment resulting from a medically documented work-related injury or illness.

An impairment is considered permanent when MMI has been reached and there is a remaining impairment.

Disability is a legal determination that reflects the impact of a workplace injury on the worker’s ability to work.

The Workers’ Compensation Law Judge (WCLJ) finds the level of disability or loss of wage earning capacity (LWEC) based on the proofs submitted by the parties.

The 2012 Guidelines.
The Guidelines are intended to provide a standard framework and methodology for physicians to evaluate and report on a worker’s

• medical condition (work-related medical diagnosis(es)),
• degree of impairment, and
• functional ability/loss.

The guidelines also contain detailed documentation requirements for the physician’s evaluation of non-schedule PPD.

Obtaining a Copy of the 2012 Guidelines
The 2012 Guidelines are available on the Board’s website.

Chapters 2 through 8 of the guidelines are taken, unchanged, from the 1996 guidelines and are devoted to Schedule Loss of Use awards. Chapters 9 through 17 deal with Non-Schedule Permanent Disabilities (the focus of this article).

The Law.
The 2007 Reform Bill amended WCL § 15(3)(w) to impose caps on non-schedule permanent partial disability (PPD) awards based on Loss of Wage Earning Capacity (LWEC). This is the part of the Law that employers like – the capping of the maximum number of weeks for a permanent partial disability. The Board has promulgated “Disability Duration Guidelines” (2012) to provide guidance regarding how medical and vocational factors are considered in determining how much earning capacity an injured worker has lost as a result of a non-scheduled permanent injury.

Section (3)(w) states:

Other cases. In all other cases of permanent partial disability, the compensation shall be sixty-six and two-thirds percent of the difference between the injured employee’s average weekly wages and his or her wage-earning capacity thereafter in the same employment or otherwise. Compensation under this paragraph shall be payable during the continuance of such permanent partial disability, but subject to reconsideration of the degree of such impairment by the board on its own motion or upon application of any party in interest however,

all compensation payable under this paragraph shall not exceed (i) five hundred twenty-five weeks in cases in which the loss of wage-earning capacity is greater than ninety-five percent; . . . and (xii) two hundred twenty-five weeks in cases in which the loss of wage-earning capacity is fifteen percent or less.

For those claimants classified as permanently partially disabled who no longer receive indemnity payments because they have surpassed their number of maximum benefit weeks, the following provisions will apply: (1) There will be a presumption that medical services shall continue notwithstanding the completion of the time period for compensation set forth in this section and the burden of going forward and the burden of proof will lie with the carrier, self-insured employer or state insurance fund in any application before the board to discontinue or suspend such services. Medical services will continue during the pendency of any such application and any appeals thereto. (2) The board is directed to promulgate regulations that establish an independent review and appeal by an outside agent or entity of the board’s choosing of any administrative law judge’s determination to discontinue or suspend medical services before a final determination of the board.

Whew. That’s a low of complicated language. Here are the implications of the statutory caps, in simple table form:

Take note of the following (highlighted in the statutory language quoted): for disabilities at or below 15%, there is a minimum number of weeks: 225.

For disabilities of 95% or higher, there is a maximum number of weeks: 525 weeks.

The number of weeks is based on the LWEC percentage.

The Case Law: Buffalo and Longley.
Matter of Buffalo Auto Recovery, 2009 NY Wrk Comp 80703905, as modified by Matter of Longely Jones Management Corp., 2012 NY Wrk Comp 60704882, remains the legal standard for determining LWEC. Longley Jones modified Buffalo Auto only to instruct that there is no distinction between working and non-working claimants when calculating LWEC.

Buffalo Auto Recovery (2009).
The Buffalo decision essentially agrees with the long line of cases that interpreted WCL § 15(a) to say that if the claimant is working, her or her actual wages determines the wage earning capacity. What Buffalo did address was the fact that “loss of wage earning capacity” is not defined anywhere in the Statute, and might be a different thing than “wage earning capacity.”

Buffalo addressed this lapse in definition by essentially finding that “Loss of Wage Earning Capacity” is the inverse of “Wage Earning Capacity.” This is essentially the same as a four-year-old child explaining what pizza tastes like by describing all the foods that pizza does not taste like. In other words, not very helpful.

Even though Buffalo didn’t bother to define “Loss of Wage Earning Capacity” any better than a four-year old would, at least Buffalo explained how the benefits are to be issued.

First, when a claimant has returned to work, the money benefits can flucuate, but the weeks won’t.

Next, when a claimant has post-injury earnings equal to or greater then her pre-injury average weekly wage, benefits stop and the number of weeks stops running. The unpaid future weeks are “held in reserve.” (There are significant limitations to Buffalo: this case does not explore the “impairment, function, vocation” mantra that was introduced in the 2012 Disability Duration Guidelines – it was decided under the 1996 Guidelines, which are no longer applicable to “new” cases.)

Longley (2012).
In Longley a Full Board Board Panel reviewed a Workers’ Compensation Law Judge’s determination of Loss of Wage Earning Capacity. The Board took the opportunity to re-write the rules and throw out any conceptual consistency that may have existed under Buffalo.

The facts in Longley are simple: the claimant sustained an injury amenable to a finding of permanent partial disability (classification). Because the claimant was working, and his post-injury wages were known (calculated at 75% of the pre-injury wage) the employer argued this should be the basis of the LWEC determination (25% Loss of Wage Earning Capacity).

The Law Judge declined to find the LWEC solely on the earnings information; instead, the Judge ordered that vocational information be provided for consideration.

In Longley, the Board Panel found this approach was reasonable and would harmonize the benefits available to working- and non-working claimants. It also means that the simple expedient of looking at actual wages will not be the sole factor in considering LWEC for the working claimant.

Of course, it also undermines the whole concept – going back to 1917 (with Marhoffer v. Marhoffer, 220 N.Y. 543) that “disability” means “impairment of wage earning capacity” -which is supposedly a real thing. Instead, New York is now not really was “wage loss state” but some type of bastard hybridization of wage loss concepts and “fixed benefit” schemes.

Longley does make one rule clear: every permanent partial disability case will require some recitation of the “impairment, function, vocation” mantra by a Judge in the decision.

Before Longley (and applying Buffalo), a claimant who returned to work but was making pre-injury wages would be entitled to 225 weeks of compensation (remember, the rate would be based on the impairment, and nothing would be paid.) Even though the employee was at work and making regular money, the weeks would be held “in reserve” and if the claimant’s weekly wages ever dipped, he could invoke the classification and compensation.

After Longley, even a claimant who has returned to work at the pre-injury wage can establish a LWEC (some arbitrary percentage, we’ll talk about how that is done, below) and get a “award” for a capped number of weeks that exceeds the 225 week “minimum.” (Remember, for impairments of 15% or less, 225 weeks is awarded for all non-zero impairments.) Of course, no money moves (because the rate is zero) but the higher number of weeks – based on the impairment are held in “reserve” in case the claimant does lose money (someday, maybe).

What makes Longley such a bad decision is that it reveals two things: first, that the Board has confused “fairness” with justness. The Board in Longley was overly-concerned with the fact that the same claimant could get a different award based on whether or not he returned to work. The thinking seems to be “hey, the worker who returns to work and make the same or more money post injury doesn’t get the same number of weeks of comepnsation as the worker who doesn’t return – that’s not fair.”

Stop here for a second.

Think on that.

This thinking reveals something very troubling: if LWEC is supposed to measure loss of wage earning capacity (and if words still have meaning), then the worker who has demonstrably no loss of wages should not be entitled to the same compensation as one who did.

Unless, as implied by the decision in Longley, we really aren’t compensating lost wages, but merely doling out some defined benefit – some minimum award for a hypothetical “loss” which can not be reasonably ascertained.

Every case involving a permanent partial disability requires an analysis of “impairment, function, and vocation” – even if the claimant has returned to work, and is making his prior wage.

Step One: Impairment.
Finding Maximum Medical Improvement
Before an impairment rating is considered, the injured worker must reach maximum medical improvement (MMI). Classification should not occur until MMI has been reached.

For the purposes of the 2012 Disability Duration Guidelines, if a case does not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed upon by the parties.

According to the 2012 Guidelines the definition of maximum medical improvement (MMI) is:

A finding of maximum medical improvement is based on medical judgment that (a) the worker has recovered from the work injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected. The need for palliative or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties.

Section D of Form C-4.3 includes questions regarding maximum medical improvement (MMI). A provider should indicate if the patient has reached MMI. If the answer is yes, indicate the date the patient reached MMI.

Preparing the Physician’s Report
The doctor’s report has to find two things (after MMI): a specific medical impairment and a severity ranking for that impairment. To prepare a report, the physician is expected to review the relevant sections of the 2012 Guidelines, Chapters 11 – 17, the claimant’s medical records, and perform a thorough history and physical examination.

The physician’s report must include:

• Relevant medical history.
• Physical exam findings.
• Test results.
• Work-related medical diagnosis(es) based on the relevant medical history, exam, and test results.
• Body part affected.
• Impairment ranking, based on the 2012 Guidelines’ criteria.
• Impact of the impairment(s) on the worker’s functional and exertional abilities.

The physician should fully complete Form C-4.3 which has been modified to accommodate the new medical impairment and functional assessment information.

Medical Impairment and Severity rankings
The first step is to determine if there is a permanent medical impairment and if so, the severity of that medical impairment.

• As per WCL §15(3)(w), the impairment must be permanent and not subject to a schedule award.
• A doctor assesses and quantifies the severity of the permanent medical impairment using the 2012 Disability Duration Guidelines.
• Each impairment class is assigned a severity ranking from A to Z.

If there are multiple permanent medical impairments, the 2012 Guidelines do not provide a mathematical formula for combining them into one number (percentage). In that case, the doctor is supposed to take the multiple impairments into account when performing the functional assessment (next step, below).

In each chapter of the Guidelines there are tables providing specific instructions for classifying medical impairment and establishing severity rankings. Each table includes two parts:

An Explanatory Box which provides general considerations for determining the medical impairment class and severity ranking:

A Severity Table (excerpt below) contains detailed criteria for establishing the medical impairment class and the associated severity ranking.
Supplemental Tables
Supplemental tables (noted by an “S” in the table number) are used in conjunction with the primary tables to determine the medical impairment class and severity ranking. The supplemental tables cannot be used alone to determine the medical impairment and severity ranking.
Medical Impairment Class
The following is an excerpt of Table 11.1 showing the Medical Impairment Class and Severity Ranking table for non-surgically treated soft tissue spine conditions.

Severity Ranking Range
For Class 4 non-surgically treated soft tissue spine impairment, the severity ranking for cervical spine injuries is provided as a range from C to H. To determine the appropriate severity ranking within the range, use the supplemental tables as directed (S11.4, S11.5, and S11.7).

Example: Supplemental Tables
The supplemental tables provide details for determining a specific radiculopathy ranking within a range. Excerpts of the relevant supplemental tables are included below:

Supplemental Table S11.4
Supplemental Table S11.5

Supplemental Table S11.7

Recording the findings.
Doctors must use Form C-4.3 to record the impairment and severity ranking. Section “E” (part “b”) of the Form must be completed.

Reclassification
Nothing in the 2012 Guidelines prevents an application for reclassification if a worker’s medical condition worsens. Of course, this literally renders the concerns of the Board in Longley absolutely moot as the Panel seemed obsessed with the possibility that a worker who is actually fine enough to return to work in an absolutely unimpaired fashion – and is actually earning or exceeding his pre-injury wages – is somehow “worse off” in regards to collecting arbitrary sums of money from his employer than the worker who does not return. If sometime in the future the worker who came back to work, earning his full-preinjury wage is somehow unable to work down the road and it is attributable to his underlying (workers compensation) injury, then he can simply seek rclassification to address his (reduced, in comparison to the worker who never returned) capped number of weeks.

Reliance on Objective Tests
Objective tests generally carry more weight than subjective symptoms. The performance of objective tests should be determined by the patient’s clinical condition. Inclusion of objective tests as criteria in the 2012 Guidelines does not imply the tests should be performed.

Medical Impairment, Functional Loss, and LWEC
Medical impairment is generally predictive of residual functional ability/loss.

Severity ranking within a specific impairment table is generally predictive of the expected functional loss from the medical impairment.

Medical impairment cannot be directly translated to loss of wage earning capacity (LWEC).

Assistive Devices
Assistive devices such as canes, crutches, wheelchairs, etc. are not taken into account in determining medical impairment (remember this on cross-examination of a treating doctor!), but may be considered in the assessment of residual functional ability and/or loss.

FAQ: Can letter severity grades be compared between body parts?
In principle, the severity rankings for the classes of one chapter should not be compared to the rankings in other chapters. For example, a “D” ranking in the spine & pelvis is not intended to imply a “D” ranking in the respiratory chapter is of equal severity.

HOWEVER, for purposes of qualitative comparison the 2012 Guidelines contain an IMPAIRMENT SEVERITY CROSS WALK (Table 18.1) which is intended to allow for some degree of comparison between rankings of different classes and chapters.

Step 2: Functional Assessment
The second step is a functional assessment which includes a medical evaluation of residual functional ability/loss. This takes place at MMI, and at the same time as the medical impairment evaluation.

In general, permanent medical impairment reduces earning capacity because it restricts a worker’s ability to perform certain work-related activities or tasks.

The treating physician should measure and document the following on Form C-4.3:

• The worker’s ability to perform work-related activities such as sitting, standing, walking, overhead reaching.
• Whether there are any restrictions as to how long and/or frequently these activities may be performed.
• The worker’s residual exertional capacity such as the ability to lift or carry weights, based on a standard classification of physical demand requirements (Sedentary to Very Heavy).
• Any other limitations such as environmental restrictions that preclude work in a particular occupation or certain work environment.

The physician’s functional assessment should be recorded on the Doctor’s Report of MMI / Permanent Impairment, Form C-4.3.

How do the Guidelines Address Functional Abilities/Losses?
The 2012 Guidelines contain a functional assessment component (Chapter 9.3) which should be performed along with the medical impairment evaluation and complete Form C-4.3 (part “F,” below), Doctor’s Report of MMI/Permanent Impairment.

The provider should rate whether the patient can perform each of the 15 functional abilities never, occasionally, frequently, or constantly.

The provider should also note the specific weight tolerances for the categories lifting/carrying and pulling/pushing. There is also room to describe any functional limitations in connection with environmental conditions (e.g. occupational asthma). If there are any psychiatric/neuro-behavioral functional limitations, attach documentation describing such.

The functional assessment should address the worker’s:

• At-injury “on the job” activities.
• Functional ability/loss
• Exertional capacity.
• Psychiatric limitations.
• Other limitations.

On the Job Activities
The physician should first document whether or not the injured worker is capable of performing the work activities of the at-injury job.

To understand the major work requirements of the at-injury job, the physician should request a job description or other similar documentation from the employer and speak with the worker about the job requirements. Does the treating physician ever request this? This suggestion is found NOWHERE in the guidelines.

If the employer maintains that the injured worker is capable of performing the at-injury job, the employer must provide appropriate detail about the physical job requirements.

The physician should document whether the worker can perform the at-injury job requirements based on the best information available to the physician about the job requirements at the time of evaluation

Functional Ability/Loss
On examination, the physician should measure the injured worker’s performance and restrictions across a range of functional abilities, including:

dynamic abilities (lifting, carrying, pushing, pulling, and grasping).

general tolerances (walking, sitting, and standing).

specific tolerances (climbing, bending/stooping, kneeling, and reaching).

These abilities and restrictions, including specific weight and time limitations, should be recorded on the Form C-4.3.

Alternatively, the physician may refer the injured worker to a physical or occupational therapist for completion of the functional measurements and, after the physician’s review, incorporate them into the Form C-4.3.

Exertional Capacity
The physician should rate the worker’s residual exertional capacity according to the standard classification system of Sedentary to Very Heavy on the Form C-4.3 (Part “F”).
The provider should rate the patient’s exertional ability according to the Federal Standards set forth by the Department of Labor:

Exertional capacity relates to activities requiring lifting and pushing and/or pulling objects. The definitions, derived from the Dictionary of Occupational Titles and used by the Social Security System, are as follows:

Sedentary: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

Light: Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently and/or negligible amount of force constantly to move objects. Physical requirements are in excess of those for sedentary work. Even though the weight lifted may only be a negligible amount, a job should be rated light work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.

NOTE: The constant stress of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.

Medium: Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for light work.

Heavy: Exerting 50 to 100 pounds of force occasionally, and/or 25 to 50 pounds of force frequently, and/or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.

Very Heavy: Exerting in excess of 100 pounds of force occasionally, and/or in excess of 50 pounds of force frequently, and/or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work

Psychiatric and Other Limitations

Psychiatric Limitations
For claims involving an established, permanent psychiatric impairment, the physician should document:

The impact of the psychiatric impairment on the worker’s ability to function in the workplace including activities relevant to obtaining, performing, and maintaining employment. Examples include personal hygiene, grooming, interpersonal relations, etc.

Other Limitations
The physician should also document other limitations caused by the permanent impairment(s) that impact the worker’s ability to function in the workplace. This includes any limitations caused by the medical condition or treatment, including prescription medication, that impact the worker’s ability to work.

Step Three: Vocational factors.
The 2012 Disability Duration Guidelines are 124 pages long. Add in the associated cases (Buffalo, Longley) and the Statute itself, and you are talking about hundreds of pages of reading. Tens of thousands of words. And in all of that writng, the Board spares just seven paragraphs – less than a complete page – to vocational factors.

Here is what the Guidelines say about “vocational factors”:

Education and Training
Education plays a significant role in a worker’s ability to qualify for different occupations and level of income. The relationship between education and loss of wage earning capacity is complicated by the fact that the impact of education is also generally reflected in workers’ pre-injury wages. Those with more education generally earn more than those with less education, both pre-injury and post-injury. Thus, in determining loss of wage earning capacity, it is important to evaluate the degree that educational achievement buffers or intensifies the impact of a medical impairment on a worker’s earning capacity.

For example, an injured worker whose education and training qualifies him to perform work that, despite his disability, he is physically capable of doing, and that pays similarly to his pre-injury work, will have a smaller LWEC. In contrast, an injured worker whose injury prevents him from doing his former occupation and does not have the education or training to perform any comparably paid work will have a higher LWEC.

Skills
Prior work skills are often as important as formal education in an individual’s qualification for employment. Someone who has only performed unskilled or semi-skilled work in the past is unlikely to qualify for skilled work post-injury. A worker who has performed skilled work may be able to find other skilled work within his functional limitations, though this depends on the nature of the worker’s job skills.

A key consideration is whether the worker’s skills are readily transferable to alternative employment. The transferability of skills from a prior occupation generally depends on the similarity of occupationally significant work activities among different jobs. The similarity can be measured by the level of similarity in the degree of skill involved, the tools and machines used, and the materials, products, processes or services involved.3

Age
The impact of age on wage earning capacity is complex. Age should be considered in the context of residual function, education, and work experience. Generally, advancing age may adversely impact a person’s ability to obtain employment that involves work that is different from one’s prior work experience or requires developing new skills.

Literacy and English Proficiency
The ability to read, write, and speak English fluently is a requirement for many occupations in New York. Those who have limited or no ability to read, write or speak English fluently may still qualify to perform manual labor and other work that does not require interaction with the public or involvement with written documents. Workers who are illiterate or have limited or no English proficiency and, by virtue of their impairment, are rendered unable to perform manual work may have a significant loss of earning capacity.

Other Considerations
Other factors may be considered in determining an injured worker’s loss of earning capacity. The key consideration is whether the factor impacts the injured worker’s ability to perform paid employment.

That’s it.

And no case law to refer to, no regulations, and nothing in the Statute that addresses this “third factor” in our “impairment, function, vocation” mantra.

Into this void has emerged venders providing Labor Market Surveys and offering placement services. As set forth below (“Best practices”) this is also a fertile ground for challenging the disability by demonstrating employability, transferable skills, and education.

Best Practices.

Preparation for Cross-Examination of claimant’s doctors.
The cross examination should cover the doctor’s opinions on impairment and functional ability. Counsel must be prepared to cross examine the claimant’s physician about the alleged diagnosis, injury severity ranking, and objective findings on examination, as well as any diagnostic testing/imaging results.

If surveillance video is available, the activities of daily living/demonstrated abilities may form the basis of a cross-examination if the physician’s report finds functional limitations which are inconsistent with the video evidence.

Counsel should have a thorough understanding of the claimant’s work activities in the at-injury job. Generally, claimant’s physicians will only have a vague idea of the claimant;s at-injury work, often provided solely by the claimant. Claimants often report to their treater that there is no light or accommodated duty work available.

The Process: Think of the LWEC litigation process as a four-step model:

Step One: MMI.
The big questions are: does our IME doctor say the claimant has reached MMI?
Has the claimant’s physician filed a Form C-4.3 stating that the claimant is at MMI?

Step Two: Impairment.
Does our doctor provide a ranking and severity finding for the permanent impairment?
Has the claimant’s physician filed a Form C-4.3?
Has the physician answered question “E-2” on Form C-4.3 (“Could this patient perform his/her at-injury work activities without restrictions?” )by examining physician on understanding of claimant’s actual at-injury work duties.

Step Three: Function.
Has a Functional Capacity Evaluation been obtained?
Is the Form C-4.3 section on functional impairment complete?
Is there surveillance available?
Do the claimant’s doctors objective findings of functional limitations (Part F2 of Form C-4.3) comport with the observations made on surveillance?
If the claimant has returned to work, counsel must be prepared with a complete understanding of the job duties and work requirements of the current position. To the extent that these current duties exceed the functional capabilities/exertional abilities identified on the C-4.3 form, counsel must be prepared to make a complete record.
Counsel should examine the treater on question “F-6” regarding the physician’s investigation into the claimant’s work status.

Step Four: Vocational factors.
Is the claimant’s personnel file, to include a job application available? This reveals the skills the claimant had pre-injury.
Is a job description available to demonstrate the pre-injury work requirements that this claimant could fulfill?
Should the testimony of the employer and the claimant be obtained on this issue?
Is a Labor Market Survey available?

In considering the litigation of vocational factors, the claimant’s pre-injury average weekly wage will be key: low AWW is a disincentive to challenge Loss of Wage Earning Capacity. For high-earners with transferable skills, vocational testimony should be obtained.

In regards to vocational factors, the Board has given only seven paragraphs of guidance in 124 pages of published Guidelines. Counsel should view this failure of the Board to set clear standards as an opportunity to challenge the disability in light of other factors.

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### Greg Lois

Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers’ compensation claims.

Greg is the author of a popular series of “Handbooks” on workers’ compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers’ Compensation Practice Guide.

Greg can be reached at 201-880-7213 or glois@lois-llc.com