Loss of earning capacity is not the same as disability percentage in Wisconsin workers’ compensation law. When an injured worker has a work-related permanent injury, the doctor may assign a disability percentage to the injured body part. For example a shoulder may have a 5% permanent partial disability percentage, also referred to as a 5% PPD percentage. Wisconsin statutes and administration codes provide the amount of workers compensation benefits due for the PPD percentage depending on the body part, location of injury, date of injury disability rate and other factors. In many cases the worker’s compensation insurance carrier will simply pay the injured worker the correct benefits due. In other cases the insurance company will deny paying, often using an independent medical examination or IME doctor as a defense. The IME doctor may deny there is a permanent injury or PPD, or the IME doctor will suggest a lower PPD percentage. Injuries to arms and legs are called scheduled injuries because the statutes provide a schedule depending on the body part. For scheduled injuries, the permanent disability benefits are determined based on the percentage assigned by the doctor.
Unscheduled injuries are those generally to the head, neck, back and abdomen, as well as many other conditions that are not scheduled. The difference is best illustrated by a low back or lumbar injury, where the injured worker’s doctor as assigned a 5% PPD. Since this is unscheduled, the worker’s benefits are 50 weeks multiplied by disability rate in effect at the worker’s date of injury. However, if the doctor assigns permanent work related restrictions that prevent the worker from returning to his job at 85% of his date of injury wages, then he or she has a loss of earning capacity claim. To establish the loss of earning capacity claim we have the injured worker evaluated by a vocational expert. The vocational specialist interviews the worker and takes into account the worker’s education and past work history, as well as the work related restrictions from the doctor.
At McCormick Law Office in Milwaukee, our attorneys get the best results or recoveries for loss of earning capacity benefits by having solid, honest work-related permanent restrictions and a trustworthy vocational evaluation. Many injured workers are never aware of the loss of earning capacity claim because the insurance adjuster does not inform the injured worker employee. The insurance company usually does not go out of its way to educate the injured employee on his or her rights. Hopefully the injured worker has someone with worker’s compensation experience who can advise with confidence. Loss of earning capacity benefits are there, but they should be pursued with an attorney due to the necessary experts required.
