If you’ve suffered a permanent injury at work, understanding loss of wage-earning capacity could mean the difference between adequate compensation and financial hardship. Loss of wage-earning capacity (LWEC) is an important component of workers’ compensation benefits in New York. It determines how much you receive for a permanent partial disability. This guide explains what LWEC is, how it’s calculated, and what you can expect from the process.
What Is Loss of Wage-Earning Capacity?
Loss of wage-earning capacity is a determination made by the New York Workers’ Compensation Board. It applies when a worker suffers a permanent partial injury that affects their ability to earn income. Unlike schedule loss-of-use awards, which apply to specific body parts like fingers or arms, LWEC applies to non-schedule injuries. These include injuries affecting the spine, lungs, pelvis, heart, or brain.
The Workers’ Compensation Board uses LWEC to measure how much your earning power has decreased due to your work injury. This percentage directly determines the maximum number of weeks you receive benefits. For example, if the Board determines you have a 50% loss of wage-earning capacity, you qualify for a specific number of benefit weeks based on that percentage. The determination happens at the end of your case when your condition becomes permanent and stable.
Why Choose Fusco, Brandenstein & Rada, P.C.
Fusco, Brandenstein & Rada, P.C. has represented injured and disabled workers for nearly 50 years since 1978. Our team of 20+ attorneys and licensed representatives understands LWEC determinations. We work hard to help our clients receive the compensation they deserve. We’ve earned recognition as Super Lawyers, Million Dollar Advocates, and members of the National Organization of Social Security Claimants’ Representatives (NOSSCR).
We’re available 24/7 to answer your questions and offer free consultations. We also provide virtual meeting options for your convenience. Our track record shows results and client support every step of the way.
Factors That Determine Your LWEC Percentage
The Workers’ Compensation Board doesn’t use a simple formula to calculate LWEC. Instead, they consider multiple factors that paint a complete picture of your situation.
Medical factors include the severity of your injury, your degree of disability, and your functional limitations. A doctor’s evaluation determines how much your injury restricts your ability to perform work activities. These medical evaluations are critical to establishing your workers’ compensation claim.
Vocational factors are equally important. The Board examines your age, education level, work history, and any special skills or licenses you hold. A 55-year-old construction worker with a back injury faces different challenges than a 30-year-old with the same injury. Your education and prior job experience influence your ability to transition to different work. The Board also considers whether you have specialized training or certifications that might help you find alternative employment.
A Functional Capacity Evaluation (FCE) often plays a key role in this process. This assessment measures your physical and mental abilities in a controlled setting. It documents what tasks you can and cannot perform. Medical evidence from your treating physicians, combined with vocational expert testimony, helps the Board understand the full scope of your limitations. Understanding how an independent medical examination affects your case is essential to your LWEC determination.
LWEC Benefit Weeks: What You Could Receive
Your LWEC percentage directly determines the maximum number of weeks you receive benefits. The New York Workers’ Compensation Board uses a tiered structure that increases benefit weeks as your LWEC percentage increases. Here’s how the brackets work:
- 15% or less: 225 weeks of benefits
- 15.1% through 30%: 250 weeks of benefits
- 30.1% through 40%: 275 weeks of benefits
- 40.1% through 50%: 300 weeks of benefits
- 50.1% through 60%: 350 weeks of benefits
- 60.1% through 70%: 375 weeks of benefits
- 70.1% through 75%: 400 weeks of benefits
- 75.1% through 80%: 425 weeks of benefits
- 80.1% through 85%: 450 weeks of benefits
- 85.1% through 90%: 475 weeks of benefits
- 90.1% through 95%: 500 weeks of benefits
- 95.1%: 525 weeks of benefits
To calculate your total award, multiply your weekly wage by the number of benefit weeks. For example, if you earn $500 per week and receive a 50% LWEC determination, you qualify for 300 weeks of benefits. This results in a $150,000 award. These benefits are in addition to your medical coverage, which continues throughout your recovery. Understanding how workers’ compensation payments are calculated helps you plan for your financial future.
The LWEC Determination Process
The LWEC determination process begins when your condition becomes permanent and stable. This typically happens near the end of your workers’ compensation case. Your attorney files a VDF-1 form, which is the official document that initiates the vocational assessment process. This form requires detailed information about your injury, medical condition, and work history.
During the hearing, a vocational expert testifies about your ability to work given your injury and limitations. Your doctor’s deposition provides medical evidence of your functional restrictions. The judge considers all evidence before making a final determination. The judge assigns an LWEC percentage based on the evidence presented. This process is similar to how maximum medical improvement is determined in your case.
Settlement is also an option in many cases. Rather than waiting for a judge’s determination, you and the insurance company may agree on an LWEC percentage and settle your case. This approach provides certainty and allows you to receive your award more quickly. Many workers find that understanding settlement options helps them make informed decisions about their future.
Frequently Asked Questions About LWEC
Can LWEC be appealed or modified?
Yes, you can appeal an LWEC determination if you believe it’s incorrect. You can appeal a Workers’ Compensation Law Judge (WCLJ) decision to the Workers’ Compensation Board Panel within 30 days using Form RB-89. If dissatisfied with the Board’s decision, you may then appeal to the Appellate Division, Third Department. Additionally, if your condition worsens after the initial determination, you may be able to request a modification to your LWEC determination.
What if I can still work despite my injury?
LWEC doesn’t require that you be unable to work. It measures your reduced earning capacity compared to what you could earn before your injury. Even if you return to work, you may still qualify for LWEC benefits if your injury prevents you from earning at your pre-injury level. Learn more about how light duty work affects your workers’ compensation benefits.
How long does the LWEC determination process take?
The timeline varies depending on your case complexity and whether you settle or go to trial. Some cases resolve within months, while others take a year or longer. Your attorney can provide a more specific estimate based on your circumstances. Understanding the workers’ compensation timeline helps you plan accordingly.
Are LWEC benefits taxable?
LWEC benefits are generally not subject to federal income tax. However, you should consult with a tax professional about your specific situation, as other factors may affect your tax liability.
What happens if I reach maximum benefit weeks?
Once you’ve received the maximum number of benefit weeks for your LWEC percentage, those benefits end. However, your medical benefits typically continue. If your condition worsens significantly, you may be able to request a modification to your LWEC determination. Understanding benefits after reaching maximum medical improvement is important for your long-term planning.
Get Help Understanding Your LWEC Rights
Working through the LWEC determination process can be overwhelming. This is especially true while you’re recovering from a serious injury. Fusco, Brandenstein & Rada, P.C. is here to help. We offer free consultations to discuss your case and answer your questions. We also explain your rights clearly. Our team is available 24/7 and offers virtual consultations for your convenience. Contact us today at 516-496-0400 to speak with an experienced workers’ compensation attorney who understands LWEC and will work to recover the compensation you deserve.