If, as a result of your work injury, you can no longer earn as much as you did before your injury, you may have a claim for loss of earning capacity. Loss of earning capacity is the decline or reduction in your ability to earn a living resulting from your work injury. It is also called vocational permanent disability. If your doctor has given you permanent work restrictions as the result of your work injury, in certain circumstances you may have a claim for loss of earning capacity.
You may be entitled to a monetary award for loss of earning capacity if:
- Your doctor finds you have permanent work restrictions (restrictions the doctor gives after your doctor finds you have healed as much as you are going to heal from your injury);
- You are not able to return to the job you had when you were injured or to another job which pays a substantially similar wage;
- Your injury was to your torso (back or neck are the most common), head, and certain other areas; and
- Retraining will not restore your ability to earn what you were earning when you were injured. (In some cases, you do not necessarily have to retrain before making a claim for loss of earning capacity.)
Important: If you find yourself in this sort of situation, this would be an excellent time to consult us. We have never encountered a worker’s compensation carrier that has suggested to an injured worker that she or he make a claim for loss of earning capacity.
Loss of earning capacity awards frequently exceed the underlying awards for functional permanent partial disability.
Example: Assume you had a back injury and your doctor has found you have a 5% functional permanent partial disability (PPD) to the body as a whole. Depending on a number of factors, including the permanent work restrictions your doctor has given, your loss of earning capacity (vocational permanent disability) might greatly exceed the 5% functional PPD rating.
Note: The 5% functional permanent partial disability is included in the loss of-earning-capacity-percentage; it is not added to it.
In any case in which it appears an injured worker may have a claim for loss of earning capacity, we recommend hiring a vocational consultant to determine loss of earning capacity.
Permanent total disability based on vocational loss: In cases of serious work injuries resulting in severe work restrictions, a vocational expert may find that you have a 100% loss of earning capacity. This is also known as permanent total disability. A successful claim for permanent total disability entitles you to temporary total disability benefits for the rest of your life.
Beware: Worker’s compensation carriers fight these claims vigorously, to say the least. If you have had a serious work injury with severe work restrictions, contact us to discuss how best to protect and promote your interests.