Determining Permanent Impairment and Loss of Wage Earning Capacity (LWEC)

At permanency in New York, if the claimant has a causally related permanent disability they are either awarded a Schedule Loss of Use award or classified with a permanent impairment and Loss of Wage Earning Capacity (LWEC) finding. The “New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity” issued in January 2012 set forth the New York standards for evaluating permanent disabilities.

In general, claims that do not involve schedule loss of use body parts (i.e. arms, hands, fingers, legs, feet, toes, hearing, vision) are classified with a LWEC finding at permanency. The permanency Guidelines set forth the criteria and factors used in determining the severity ranking for the medical impairment for certain surgically treated and non-surgically conditions, with “A” being the least severe medical impairment and “Z” being the most severe medical impairment. The severity ranking “is generally predictive of the expected functional loss from the medical impairment.” The Guidelines also permit consideration of an “assessment of residual functional ability/loss” of the claimant. The extent of impairment is measured by considering medical evidence of impairment and medical evidence of functional loss. Once the appropriate severity ranking is determined, the Medical Impairment Severity Crosswalk (Table 18.1) is to be applied. Table 18.1 is intended to allow for some degree of comparison between rankings of different classes and chapters.

In a typical claim, once there is medical evidence of a permanent disability from either or both parties, the parties will seek to cross-examine the opposing medical expert. The claimant will seek to cross-examine the IME(s) and the carrier will seek to cross-examine the treating physician(s). In addition to developing the medical record, the Board will schedule the claimant to testify regarding their medical impairment(s), functional abilities, and vocational skills.

The law judge’s decision on classification should contain findings as to medical impairment, functional ability, vocational factors, and the determination of Loss of Wage Earning Capacity. In order to render a LWEC finding, the law judge should develop the record as to the nature and degree of permanent impairment, work restrictions, age, education, language ability, and other relevant factors (Matter of Wormley v Rochester City Sch. Dist., 126 AD3d 1257 [2015]). In order to develop the record, the claimant should testify regarding these factors with defense counsel having the opportunity to cross-examine the claimant regarding such things as their vocational skills, education, functional abilities.

The Board has ruled that “while the impairment rating may coincidentally be the same percentage as the ultimate finding of LWEC, the medical impairment rating is not to be used as a direct translation to LWEC” (Matter of NYC Dept of Parks & Recreation).

Claims with a date of loss on or after March 13, 2007 are subject to a cap on indemnity benefits based on the Loss of Wage Earning Capacity. Only claimants found to be permanently totally disabled are entitled to disability benefits for life. Claimant’s classified with a permanent partial disability (LWEC less than 100%) are subject to a cap on their indemnity benefits based on WCL §15(3)(w) (see chart below). After the completion of the number of weeks set forth in WCL §15(3)(w), the claimant is no longer entitled to indemnity benefits.

LWEC

Max. # weeks of PPD benefits

>0-15%

225 weeks

>15-30%

250 weeks

>30-40%

275 weeks

>40-50%

300 weeks

>50-60%

350 weeks

>60-70%

375 weeks

>70-75%

400 weeks

>75-80%

425 weeks

>80-85%

450 weeks

>85-90%

475 weeks

>90-95%

500 weeks

>95-99%

525 weeks

Declan is an attorney licensed to practice law in New Jersey, New York and the U.S. District Court of New Jersey. Declan is a Partner at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at dgourley@lois-llc.com or 201-880-7213.