Today’s news is about a case out of New York, which affirms a different standard for determining disability payments than some of us might be used to.

A “loss of earning capacity” is different than straight medical disability in terms of paying a worker benefits. A miner who has only ever worked that job and has a limited education might be deemed to have a greater loss of earning capacity than a desk job worker who has a college degree if they both have the same medical injury. Some injuries can have a much different impact on the worker and their future depending on their job or job prospects. These kinds of benefits are not available in all states and even when they are they are not an exact science.

Mildred Schirizzo worked for Citibank for 22 years, and in 2009 she injured her back at work. She never went back to work, retiring in 2012 when she was determined to have a permanent impairment rating of 75%. She had only ever worked as a bank teller and could not continue her line of work because of her injury. She could not sit or stand for long periods of time or lift anything heavier than 15 pounds. She asked that her loss of earning capacity be considered in her benefits. The Workers’ Compensation board decided that, based on that figure, she had a 99% loss of earning capacity as she had pretty much involuntarily retired, only forced to because of her injury.

Her employer and their insurer appealed this decision. The appellate board upheld her status and gave her a 99% loss of wage earning capacity instead of just her disability impairment rating. She was older, she had only ever worked that kind of job, she had a high school level of education and her injury caused her a 75% permanent impairment in a job that required lots of prolonged standing and sitting.

Some think that employers who have a return to work plan will benefit from the loss of earning capacity benefits. Those who employ desk job workers might not see much of a difference in claims costs, or they could even see lower compensation costs. For those who employ relatively unskilled workers it could cost them more in compensation costs but if they have a return to work program they could make sure that injured worker, who may not be able to go back to their original job, can still contribute to the workforce in a meaningful way.