DIFFERENT PURPOSES OF THE TERMS “LOSS OF WAGE-EARNING CAPACITY” AND “WAGE-EARNING CAPACITY” EXPLAINED.

The Third Department again explained the different purposes for “loss of wage-earning capacity” and “wage earning capacity” in the benefits determination:

Claimant contends that, because he had returned to work at full wages, the Board erred in finding that he had a 10% loss of wage-earning capacity. We disagree. The loss of wage-earning capacity “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 comparison, wage-earning capacity is used to determine a claimant’s weekly rate of compensation (see Workers’ Compensation Law § 15 [5-a]). As this Court has recently explained, wage-earning capacity and loss of wage-earning capacity “are to be used for separate and distinct purposes” … . While wage-earning capacity “can fluctuate based on a claimant’s employment status,” the loss of wage-earning capacity remains fixed after the time of classification… . In other words, “the determination of a claimant’s loss of wage-earning capacity is designed to establish duration of benefits, a finding which is unrelated to the traditional purpose of Workers’ Compensation Law § 15 (5-a), which is to calculate the weekly benefit rate” … . Accordingly, despite the fact that claimant was working at full wages, the Board was entitled to establish the loss of wage-earning capacity, which sets a fixed durational limit on potential benefits in the event that claimant incurs a subsequent reduction of wages as the result of his work-related injuries … . Matter of Perez v Bronx Lebanon Hosp. Ctr., 2017 NY Slip Op 04344, 3rd Dept 6-1-17

WORKERS’ COMPENSATION LAW (DIFFERENT PURPOSES OF THE TERMS LOSS OF WAGE-EARNING CAPACITY AND WAGE-EARNING CAPACITY EXPLAINED)/WAGE EARNING CAPACITY (WORKERS’ COMPENSATION LAW, DIFFERENT PURPOSES OF THE TERMS LOSS OF WAGE-EARNING CAPACITY AND WAGE-EARNING CAPACITY EXPLAINED)/LOSS OF WAGE-EARNING CAPACITY (WORKERS’ COMPENSATION LAW, DIFFERENT PURPOSES OF THE TERMS LOSS OF WAGE-EARNING CAPACITY AND WAGE-EARNING CAPACITY EXPLAINED)