Workers compensation loss of earning capacity benefits are only available in Wisconsin for nonscheduled permanent injuries. A nonschedule permanent disability is one affecting the the torso or head, including mental faculties but excluding hearing or sight. See Wis. Stat. § 102.44(3). Most of the cases we see involve the low back, neck or psychological damage resulting from or along with a physical injury.
Loss of earning capacity benefits are compensated by comparing the injured worker’s pre-injury wage-earning capacity to the employee’s post-injury earning capacity. The earning capacity calculation takes into account the person’s education, work history, training, and whether the employee can be retrained or vocationally rehabilitated. See Wis. Admin. Code § DWD 80.34. This loss of earning capacity is calculated as a percentage then applied to 1,000 weeks at the at the PPD rate in effect for the date of injury. See Wis. Stat. §§ 102.44(3) and 102.11(1).
If an injury causes both scheduled and a nonschedule permanent disability, loss of earning capacity must be determined based only on the loss caused by the nonschedule disability. Langhus v. LIRC, 206 Wis. 2d 494 (Ct. App. 1996). Vocational experts separate out the scheduled injury and only consider the nonscheduled permanent restrictions in calculating the loss of earning capacity. A loss of earning capacity may be appropriate if a scheduled injury interferes with the efficiency of nonschedule parts of the body. See Mednicoff v. DILHR, 54 Wis. 2d 7 (1972).
If a combination of scheduled and nonscheduled permanent restrictions are caused by one employer, the worker may combine the disabilities if they cause permanent total disability. See Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69.
A pre-existing injury or disability will not preclude a later injury and loss of earning capacity award if the pre-existing injury or disability did not cause restrictions or loss of earning capacity.
There is are no Wisconsin workers compensation benefits for pain and suffering. Loss of earning capacity is based on permanent restrictions that interfere with the ability to earn only. Loss of earning capacity is only available if the worker cannot earn at 85% or more of his or her date-of-injury wage. An employee who returns with no wage loss to the same work that the employee was doing at the time of the injury cannot succeed in a claim for loss of earning capacity based on wages lost from a second job. Ruff v. LIRC, 159 Wis. 2d 239 (Ct. App. 1990).
Milwaukee, Wisconsin McCormick Law Office attorneys get the best results in loss of earning capacity cases when the vocational specialist has the medical expert opinions to support permanent physical restrictions preventing a return to work.
