LOSS OF EARNING POWER (RCW 51.32.090(3))
Comparison wages after reopening
After a reopening of the claim, a worker's loss of earning power benefit shall be based on a comparison of the worker's earning power at the time of the initial injury with his current earning power, following the rationale of Hubbard v. Department of Labor and Indus., 92 Wn. App. 941 (1998), rev'd. on other grounds, 140 Wn.2d 35 (2000), rather than that of Davis v. Bendix Corp., 82 Wn. App. 267 (1996), rev. denied, 130 Wn.2d 1004 (1996). ....Jack Hamilton, 03 14743 (2004)
Department obligated to make eligibility determination
Where the worker's condition is not fixed and the worker can return to light duty employment but not to her former job, the Department is required to determine whether the worker is eligible for loss of earning power compensation. ....Marietta Arnold, 56,329 (1981) [concurrence]
Effect of completing vocational rehabilitation
A worker who, upon successfully completing a vocational rehabilitation program approved by the Department, becomes employed at a job with wages 5 percent or more less than that at the time of the injury, is entitled to LEP benefits. The entitlement is not impacted by the Department's later position that the plan was unnecessary. ....Ronald Thomas, 89 3503 (1991)
Effect of not seeking full-time employment
It was incorrect to deny the worker loss of earning power benefits for any period of time on the basis he was not seeking full-time employment due to his enrollment in school, whether a worker actually seeks full-time employment is irrelevant to determining entitlement to loss of earning power benefits. ....Ralph Faulder, Jr., 94 2765 (1996)[dissent]
Effect of not working
When a worker is not working, but demonstrates a requisite loss of earning power, the worker may be entitled to loss of earning power benefits. Benefits may not be denied merely because the worker was not working for periods of time in which he seeks the benefit. ....Karl Bean, 04 19814 (2006)
Effect of wage increase in pre- and post-injury employments
A worker's time loss compensation and loss of earning power payments are based on the worker's actual wages at the time of the injury rather than the worker's "potential" ability to earn money. However, in computing loss of earning power benefits it is proper to consider the extent of increase, if any, which has occurred in the earnings paid for the employment held at the time of the injury in order to arrive at the earnings which the worker would have received had he or she not experienced the injury. (Hunter v. Department of Labor & Indus., 43 Wn.2d 696 (1953)). Similarly, it is proper for the Department to take into account any increases in wages from post-injury employment, since, as the worker's wages increase, he regains that portion of his lost earning power. ....Chester Brown, 88 1326 (1989)
Entitlement after reopening
In order to be entitled to loss of earning power benefits after a claim has been reopened, it is necessary to establish that the aggravation caused a temporary total loss of wages or an actual loss of earning power. ....John Parker, 03 23407 (2005) [Editor's Note: The Board's decision was appealed to superior court under Skagit County Cause No. 05-2-00443-9.]
Entitlement beyond date condition becomes fixed
A worker's right to temporary periodic disability [loss of earning power (LEP)] benefits, when otherwise due, cannot be terminated by an order formally stating that a condition is fixed when the order does not concurrently determine whether permanent disability benefits are payable under the claim. Citing Weston, Deering. The distinction between factual and legal fixity does not justify the result. The worker is entitled to continued LEP benefits until an order fixes the extent of, and makes an award for, permanent partial disability, if any. ....Carl Coolidge, 89 4308 (1991) [dissent] [Editor's Note: The Board's decision was appealed to superior court under Klickitat County Cause No. 91-2-00090-1.]
A worker's condition is not legally fixed until the Department first issues an order which classifies the worker's condition as fixed and permanent. Loss of earning power payments may be made through that date, provided the worker is otherwise entitled to such benefits. However, a protest of the initial closing order does not automatically extend the period of loss of earning power, absent medical evidence establishing that the worker's condition was not fixed on the date of that closing order. ....Douglas Weston, 86 1645 (1987)
A worker receiving loss of earning power compensation, whose condition becomes fixed but whose earning power is not fully restored, is entitled to continuation of loss of earning power compensation until an order is entered fixing the extent of permanent partial disability (Citing Hunter (43 Wn.2d 696)). ....Charles Deering, 25,904 (1968)
Proof required
To prove entitlement to loss of earning power benefits the worker must present (1) lay or expert testimony establishing pre-injury earning capacity; (2) expert testimony establishing post-injury earning capacity; and (3) expert testimony establishing that a reduction, if any, in post-injury earning capacity is causally related to the residuals of the industrial injury. Evidence that a worker's post-injury income was less then pre-injury income is insufficient to establish a loss of earning power absent proof that the worker's reduced income is due to physical restrictions imposed by the industrial injury. ....Patricia Heitt, 87 1100 (1989)
Rebuttable presumption of entitlement
Where the medical evidence establishes that as a result of the injury the worker cannot return to his regular job and is required to change jobs, the fact that his post-injury earnings are less than his pre-injury earnings creates a rebuttable presumption that he has sustained a loss of earning power. ....Howard Dyer, 15,763 (1962)
Res judicata – See RES JUDICATA Time loss compensation
Simultaneous loss of earning power and time-loss compensation
A worker who suffers an industrial injury causing a loss of earning power and subsequently suffers another industrial injury causing temporary total disability is not precluded from simultaneously receiving loss of earning power compensation and time loss compensation. ....Lloyd Larson, 86 0479 (1988)
Unemployment compensation
Wages (RCW 51.08.178) - See TIME LOSS COMPENSATIONEntitlement to loss of earning power benefits does not depend on whether the worker is employed, but rather on whether the worker's capacity to earn the wage at injury is restored. Accordingly, a worker is not precluded from receiving loss of earning power benefits because of the simultaneous receipt of unemployment compensation. ….Daniel Estes, 96 0722 (1997)[Editor's Note: The Board's decision was appealed to superior court under Clallam County Cause No. 97-2-01050-3]