Following the Board’s decision in Matter of Longley Jones, 2012 NY Wrk Comp 60704882, which held that a claimant’s wages cannot be the sole factor for determining Loss of Wage Earning Capacity, a finding of a 0% Loss of Wage Earning Capacity seemed to be a thing of the past. Certainly judges stopped classifying claimants with having a 0% LWEC even when the claimant had returned to work earning in excess of the at injury AWW.

This month, The Law Offices of Melissa A. Day won a finding of a 0% Loss of Wage Earning Capacity against a claimant who sustained a neck and left shoulder injury in the course of his employment as a private security guard at a local amusement park. After undergoing a cervical fusion procedure, the claimant was ultimately able to return to work at his primary employment as a deputy sheriff without a loss of earnings; and in fact was earning more than he was before the accident. While litigating the issue of Loss of Wage Earning Capacity, the claimant produced an FCE indicating that he was capable of what the Board defines as medium, and some heavy-duty work but that he could “safely perform all the critical work demands required for the job of Deputy Sheriff.” The claimant’s treating physician opined a permanent impairment under Table 11.2, Severity E and also opined a physical capability of “medium to heavy demand work.” The Carrier’s consultant opined an impairment under Table 11.2, Severity B and also agreed the claimant could perform medium to heavy work.

At the hearing level, the WCLJ classified the claimant with a physical impairment, severity “E” and ruled that the claimant sustained a 35% loss of wage earning capacity when considering his age, education, English proficiency, work experience and present employment, even though he was presently suffering no loss of earnings as a result of the accident.

On appeal, The Law Office of Melissa A. Day argued that the credible and unanimous medical evidence indicated that the claimant’s injuries did not prevent him from returning to his pre-injury work duties, and he was, in fact, earning more income after the accident than he was before. It was further argued that the 35% LWEC was by default an “arbitrary and capricious” ruling insofar as the Board has failed to provide any rational method for converting the severity of the medical impairment and the vocational factors of any one claimant into a percent loss of wage earning capacity. In failing to do so, the Board was forcing the parties to take a “blind leap across an inscrutable chasm filled with the various factors” and to thereafter arrive at a completely arbitrary loss of wage earning capcaity that could never be properly quantified.

The Board, in reversing the WCLJ, concluded that the claimant’s age, education and work experience were factors that should have “a mitigating impact on [the claimant’s] loss of wage earning capacity.” The Board went on to cite Matter of Longley Jones, 2012 NY Wrk Comp 60704882 for the proposition that post-accident earnings could not be the sole factor considered in assessing a claimant’s LWEC, but went on to rule that “this does not mean that a permanent partially disabled claimant’s wages at the time of classification are irrelevant. They are an important factor . . .”

The Board concluded that the claimant suffered from a 0% loss of wage earning capacity ruling that “the evidence indicates that the claimant was able to perform all his critical work demands, had the ability to perform medium to heavy work, and has returned to work without loss of wages, warrant an conclusion that the claimant had a 0% loss of wage earning capacity.” In so ruling, the Board distinguished FedEx Express, 2014 NY Wrk Comp 0275408 which previously stood for the proposition that a claimant, even after returning to work full duty work, without restrictions and without further loss of wages could be granted a minimal LWEC finding (10% in that case) solely on the ongoing subjective complaints stemming from the injury.

Welcome back 0%.

<a href="https://thelomad.com/getmad.today/wp-contentthelomad.com/getmad.today/wp-content/uploads/2014/11/ZERO-PERCENT-LWEC-Redacted-.pdf" target="_blank" rel="noopener">ZERO PERCENT LWEC Redacted</a>