An unscheduled injury or nonscheduled injury is one not listed in Wis. Stats. Sec. 102.52-56. Unscheduled injuries usually affect the back, neck, abdomen, torso or head, excluding hearing or sight, as well as mental injuries and systemic conditions. See Wis. Stat. Sec. 102.44(3).

Unscheduled disability allows for loss of earning capacity benefits, which is compensated by comparing the employee’s wage-earning capacity before the work-related disability to what they can earn after the injury. The law takes into account the education, work history, training, and whether the employee can be retrained or vocationally rehabilitated. Loss of earning capacity factors to be considered in the assessment are in Wis. Admin. Code Sec. DWD 80.34. This loss of earning capacity is calculated as a percentage, with 100% equalling 1,000 weeks. However, if an injured worker is 100% disabled for vocational purposes, they are in a different category called permanent total disability. Loss of earning capacity benefits are paid at the PPD rate. See Wis. Stat. Secs. 102.44(3) and 102.11(1).

If an injured worker has both a scheduled and a unscheduled injury¬†permanent disability, loss of earning capacity must be determined based only on the loss caused by the nonschedule disability. Langhus v. LIRC, 206 Wis. 2d 494, 557 N.W.2d 450 (Ct. App. 1996). When evaluating our clients, we ask vocational experts to separate out the physical restrictions caused by each injury and to assess lost earning capacity for each one. However, the employee’s scheduled disability can be included with the nonschedule impairment to support a permanent total disability award. Rural Mut. Ins. Co. v. LIRC, 2009 WL 3381630 (unpublished opinion not citable per section 809.23(3)). Also, a scheduled injury can give rise to a loss of earning capacity claim if the disability it causes is to an unscheduled body part. See Mednicoff v. DILHR, 54 Wis. 2d 7, 194 N.W.2d 670 (1972).

No loss of earning capacity can be awarded unless there is an impairment of earning capacity. Shymanski v. Industrial Commission, 274 Wis. 307, 314 , 79 N.W.2d 640 (1956). So if a person has a physical disability but no loss of earning capacity, there is no LOEC claim.

Generally, expert vocational opinion is necessary to prove a case for loss of earning capacity. Although the court in Manitowoc County v. DILHR, 88 Wis. 2d 430 , 276 N.W.2d 755 (1979) indicated a doctor’s opinion was sufficient, the competency of the doctor’s opinion was not raised as a defense. Also, a loss of earning capacity claim requires work-related permanent restrictions that were caused by the alleged date of injury.

McCormick Law Office in Milwaukee, Wisconsin.