The Third Department explained the different purposes for the terms “loss of wage-earning capacity” and “wage-earning capacity:”
The employer argues that claimant’s compensation must be calculated based upon his wage-earning capacity pursuant to Workers’ Compensation Law § 15 (5-a) and that, because he was working at full wages, his wage-earning capacity was 100% at the time of classification and that the finding of a 25% loss of wage-earning capacity was accordingly unlawful.
The term “loss of wage-earning capacity” was added in 2007 as part of the reform of the Workers’ Compensation Law …, and “is used at the time of classification to set the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” … . In contrast, wage-earning capacity is used to determine a claimant’s weekly rate of compensation … . As this Court recently explained in detail, “the legislative history makes clear that ‘wage-earning capacity’ and ‘loss of wage-earning capacity’ are to be used for separate and distinct purposes” … . Indeed, “[u]nlike wage-earning capacity, which can fluctuate based on the claimant’s employment status, loss of wage-earning capacity was intended to remain fixed” … . In light of the separate and distinct purposes for the calculation of a loss of wage-earning capacity and the wage-earning capacity, the Board was free to establish the duration of claimant’s benefits by classifying him with a 25% loss of wage-earning capacity in order to set a fixed durational limit on potential benefits. Matter of Barrett v New York City Dept. of Transp., 2017 NY Slip Op 01037, 3rd Dept 2-9-17
WORKER’S COMPENSATION LAW (THE DIFFERENT PURPOSES OF THE TERMS “LOSS OF WAGE-EARNING CAPACITY” AND “WAGE-EARNING CAPACITY” EXPLAINED)