Off The Record – Workers’ Comp – Loss of Wage Earning Capacity Pt 1

Video Transcript

Hi, I’m Bill Turley, one of the partners at Turley Redmond & Rosasco. I’m gonna talk to you today about a concept in the workers’ compensation law called loss of wage-earning capacity. And when you have an individual who’s had an on-the-job injury and it turns out to be a permanent injury, in very many cases, they can be classified permanently partially disabled, or permanently totally disabled for that matter. And when we are in that situation, you have to address the issue of loss of wage-earning capacity, okay?

And that really very simply means how has this injury that has turned out to be permanent, how has that impacted on my ability to make a living? I’m really simplifying this because it’s a bit more complicated than I’m going to explain, but I’m gonna tell you a story that I tell a lot of my clients when this issue comes up, okay?

Let’s say that you have twin brothers, okay? They’re both 50 years old and they’re absolutely identical down to the hair on their head. And they both have back conditions and the back conditions are identical, so much so that if you looked at their MRI films and held them up to the light, they both have herniated discs and they’re identical herniated discs, okay? So you have twin brothers with back conditions and they’re both 50 years old.

But here’s the difference, okay? The first brother does very, very well in school. He graduates high school, goes on to college. And then after that, he goes on and he earns an MBA. And he goes into the world of high finance and he trades stocks and he writes insurance programs and he does financial planning. And one day, he’s in the office and someone leaves a FedEx box outside the office and he doesn’t see it. And he trips over the box and he throws his back out. And the back injury is pretty bad. He’s in a lot of pain.

But he doesn’t really lose any time from work. Because of the nature of his job, you know, he’s able to come in, he doesn’t do any heavy lifting. He works at his computer. He calls on the phone. He’s definitely in pain, but, you know, he can take a couple of Aleves or something and just kind of, you know, rest easy. Everybody around the office does all the heavy lifting for him and retrieving files and things like that, if there are files that need to be retrieved. Almost everything’s on his computer.

And if he’s not feeling great some days, he can work from home. You know, he can do his stock trades and his insurance underwriting while he is sitting in his bathrobe at home with a cup of coffee. All right. So his back injury, well, it really hasn’t impacted so much on his ability to work, okay?

Now let’s go to the other twin brother. Junior year in high school, he says, “You know what, I’m not a book guy. I’m really good with my hands. I’m really good with carpentry. I’m just gonna leave school at this point and go out into the working world.” And he becomes a union carpenter and he does quite well, okay? He’s in the union. He makes a really good wage. He has great benefits. He’s got great health insurance.

But he’s walking around on a job site one day and someone left a bag of cement out in the open and he doesn’t see it. He’s carrying lumber on his shoulder and he trips over the bag of cement and he throws his back out. He’s got the very same back problem that his brother the financial planner has, but here’s the difference. He can’t work after that. His herniated disc is pretty bad and he talks to his doctor and his doctor says, “Listen, your days of swinging a hammer, climbing scaffolds, and so on and so forth, that’s over. You’re not only gonna pose a danger to yourself if you keep doing that, you’re gonna pose a danger to your co-workers. So your days as a carpenter are done.”

Well, what am I gonna do? I’m 50 years old. I didn’t graduate from high school. I went right into carpentry. He says, “What, am I gonna be like my brother and put on a suit? That’s not happening.” “Well,” the doctor says, “you might be able to do something really light where you’re, like, not doing any heavy lifting. I mean, you know about carpentry and lumber and stuff like that. Maybe you could work at Home Depot or Lowe’s helping out customers.”

And the guy says, “Well, you gotta be kidding me. I was making $2,000 a week as a union carpenter, plus my benefits, plus my pension and everything. I mean, if I’m lucky, I can make maybe $500 or $600 a week at Lowe’s or Home Depot.”

So what’s the moral of the story here? An injury, which might be the very same injury, can affect people in very different ways. So if we go to the first brother, the guy who’s got the white-collar sit-down job, the professional, the back injury has had very limited impact on his ability to make a living. He might have like close to zero loss of wage-earning capacity. But the other brother, well, his loss of wage-earning capacity might be 75% or 80% or more.

So, you know, that’s kind of what the workers’ comp board does when they determine your permanent disability and how much money you’re gonna get per week and for how long you’re gonna get it. Because depending on the percentage of loss of wage-earning capacity, it correlates to a number of weeks of benefits payable into the future.

It can be really, really complicated and I probably don’t have time to explain all of it to you today in this video, but if you have questions about it, check us out on the web, www.nydisabilitylaw.com, or you can call us at 631-582-3700. This is Bill Turley, and thank you for listening today.