Loss of Earning Power Benefits
Did you know that you may be entitled to wage loss benefits even if you are able to work or have returned to work? These benefits, called loss of earning power (LEP) benefits, are available to individuals who have open claims and, due to their injury, have lost earning power. In this blog, I will lay out the details of what is required to be entitled to these benefits.
WHAT IT MEANS TO HAVE LOST EARNING POWER
There are two situations in which a worker may have lost earning power. The first is where they are able to work, but only at a job that pays less than their job of injury. So, an example, of this is an injured worker who was working as a truck driver making $25 an hour at the time of their injury, but can now, due to their injury, only work as dispatcher making $20 an hour.
The other common situation is where a worker can return to work, but, due to their injury, can’t work as many hours as they did at the time of their injury. An example of this would be a worker who worked 8 hours per day, 5 days per week at the time of their injury, but now, due to their injury, can only work 4 hours per day 3 days per week.
There will also be situations where both of these situations apply.
To be considered to have sufficient lost earning power to qualify for benefits, the worker must have lost at least 5% of their earning power.
TIMING OF ELIGIBILITY
The Department of Labor and Industries has historically taken the position that an individual was only entitled to LEP benefits up until the time of “medical fixity.” Medical fixity is the point where a worker’s medical condition is as good as it is going to get and the worker, therefore, no longer needs curative medical treatment for their work related injuries.
However, in several cases decided by the Board of Industrial Insurance Appeals, the Board held that LEP benefits are payable up until the point of “legal fixity.” “Legal fixity” is the date that the Department issues an order closing the claim. These Board cases are In re Carl Coolidge, BIIA Dec., 89 4308 (1991), In re Douglas Weston, BIIA Dec., BIIA Dec., 86 1645 (1987), and In re Charles Deering, BIIA Dec., 25,904 (1968). In a later case, when the Department continued to try to argue that benefits can be cut-off at “medical fixity,” the Board found that this was a frivolous defense and sanctioned the Department. In re Michael Burke, BIIA Dec., 99 14179 (2001).
Despite all of these cases, claims managers will still sometimes refuse to pay LEP benefits past “medical fixity.” If this happens, it is necessary to appeal the denial in order to get the benefits.
OTHER ISSUES RELATED TO LEP BENEFITS
One issue that frequently comes up involves workers who have been found able to work at jobs that pay less than the job of injury, but have not actually returned to work. In this situation, the worker is still entitled to LEP benefits, but the benefits are to be paid based on an older method of calculating benefits which usually results in a lesser amount. See In re Karl Bean, BIIA Dec., 04 19814 (2006).
In terms of the amount that a worker may be entitled to, where the worker is working during the period for which they are seeking LEP benefits, they are generally entitled to 80% of the difference between their wage of injury and their new earnings. However, their LEP benefit plus their actual wage cannot exceed 150% of the state’s average wage. The worker’s LEP benefit also cannot be more than the worker would be entitled to in time loss benefits. It is also important to know that the wage of injury is supposed to be “updated” to reflect what the job of injury would currently pay.
For the situations where a worker hasn’t returned to work, the formula is more complex. You figure out what percentage of the worker’s earning power has been lost and multiply that percentage by the worker’s time loss rate.
To apply for LEP benefits a worker has to fill out an LEP form. The forms can be found on the Department’s website: https://lni.wa.gov/forms-publications/f242-208-000.pdf . The worker’s doctor must certify the worker’s entitlement to the benefits.
Issues surrounding entitlement to LEP benefits are often complex. We encourage you to seek legal help if you have problems or questions.