A nonscheduled or unscheduled permanent disability is any compensable disability not listed in the workers comp schedules listed in Wis. Stats. Sec. 102.52 to 102.56. Mostly this involves a disability to the torso or head (but not involving sight or hearing loss). So, a permanent disability involving the low back, neck, abdomen, mental or psychological processes are unscheduled.
Nonscheduled disability workers compensation benefits are calculated by comparing the employee’s wage-earning capacity before the disability to the employee’s wage earning capability after the disability, taking into consideration education, work history, training, and whether the employee can be retrained or vocationally rehabilitated. This loss of earning capacity is calculated as a percentage, and that percentage is applied to 1,000 weeks. Compensation is paid at the permanent partial disability or PPD rate in effect at the date of injury. See Wis. Stat. Sec. 102.44. The LOEC factors considered are listed in Wis. Admin. Code Sec. DWD 80.34. Generally, an expert vocational opinion is necessary to prove a loss of earning capacity claim. Vocational experts are also used to prove permanent total disability claims, however, sometimes the injury is so self-evident and/or the doctor’s opinions so clear and convincing that a vocational expert is not necessary.
Loss of earning capacity can only be calculated using nonschedule permanent disability, one cannot include scheduled disability in the LOEC determination. However, for purposes of a retraining claim or a permanent total disability claim, one can add together nonscheduled and scheduled disabilities from the same employer. See Langhus v. LIRC, 206 Wis. 2d 494, 557 N.W. 2d 450 (Ct. App. 1996) and Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 613 N.W. 2d 875. We often ask the vocational experts to render alternative opinions taking into account different disability scenarios. As noted in a prior blog, a scheduled body part injury can form the basis of a LOEC claim if the injury causes a disability to a nonscheduled body area. See Mednicoff v. DILHR, 54 Wis. 2d 7, 15, 194 N.W. 2d 670 (1972). Traumatic permanent disabilities with different dates of injury may be apportioned among different employers, however occupational injuries and disability cannot be apportioned. The only way to have an occupational injury paid between different employers is if there is a recovery period in between disabilities, essentially creating two distinct periods of disability.
A LOEC claim can only be made if the permanent disability causes at least a 15% loss of earning rate compared to the date of injury pay rate. Quitting a job for reasons other than the disability will probably provide a defense to a LOEC claim.
McCormick Law Office in Milwaukee, Wisconsin.
