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A Blind Leap across an Inscrutable Chasm – Arbitrary and Capricious Loss of Wage Earning Capacity (LWEC) Determinations

by | Nov 30, 2013 | NYS Workers Compensation |

Please consider the following excerpt from an Application for Review recently submitted to the Board on an appeal of a LWEC finding. In this claim the claimant was able to return to work as a law enforcement officer without any reduction in earnings following cervical surgery.

THE DECISION THAT THE CLAIMANT HAS A 35% LWEC IS ARBITRARY AND CAPRICIOUS.

The Board is fully aware that it has not provided any rational method for converting the severity of the medical impairment and the vocational factors into a percent loss of wage earning capacity. Indeed, the term loss of wage earning capacity has yet to be defined despite General Counsel’s promise that regulations would be promulgated providing this kind of clarification.

The fact is that in its decisions interpreting LWEC findings, the Board and judges are merely reciting the factors which should be taken into account – severity of the medical impairment, Functional and Exertional Abilities and Losses, Age, Education, Transferable Skills and English Language Proficiency – and generating a LWEC percent without any explanation for how the adjudicator reached his or her penultimate number. The judge forces the parties to take a blind leap across an inscrutable chasm filled with the above factors to arrive at a LWEC percentage. This is what happened in this case.

As the Permanent Impairment Guidelines provide, the inquiry into loss of wage earning capacity:

…seeks to quantify how much earning power an injured worker has lost in light of his or her medical impairment, functional limitations, prior work history, education, skills, and aptitudes.

PILWECG at p. 46.

In this claim, the WCLJ found that the Claimant has a 35% LWEC. Hence, using the Board’s description above, the Claimant has lost 35% of his earning power. There is simply no support in the record for the conclusion that the claimant is only earning or will only earn 65% of what he would have earned without the accident.

As a result, finding that the Claimant’s LWEC can be quantified at 35% is not based on reason or evidence – the very definition of arbitrary and capricious.

Do you agree or disagree?