Hamberger & Weiss LLP

Appellate Division Requires Board to Obtain Medical Evidence of Effect of Injury on Claimant’s Functional Abilities in Determining LWEC

On 12/14/17, the Appellate Division, Third Department, decided King v. Riccelli Enterprises, which held that when assessing a claimant’s loss of wage earning capacity (LWEC), the record must contain medical evidence of how the work injury impacts claimant’s functional capabilities. The record in King contained permanent partial disability rankings under the 2012 Guidelines, and a generic 15 lb. lifting restriction. The Court held that this, by itself, was insufficient, and that the physicians needed to explain how the claimant’s permanent medical impairment impacted his ability to perform relevant physical tasks.

This decision serves as a reminder for medical professionals of the level of detail necessary for a competent medical report on permanency. LWEC findings by the Board where the record lacks a detailed description of claimant’s physical capabilities will be vulnerable to attack. Doctors must fill out the C-4.3 form completely, including the part requesting information on specific physical task capabilities. If the doctors on record have not provided this information, the parties may need to obtain it by deposition testimony or risk having a LWEC finding reversed or remanded on appeal.

Back to News