Industrial Loss is the determination of the effect an injury will have on the employee’s ability to work and earn wages after an injury.
Impairment v. Disability
Doctors determine impairment under AMA guidelines. The Commission determines disability, which encompasses industrial loss. The Commission is not bound by the impairment ratings determined by the doctor and can find more or less disability than the impairment ratings provided when determining permanent disability benefits.
Scheduled Members v. “Other Cases”
By statute, “scheduled members” include the thumb, fingers, toes, hand, arm, foot, leg, eyes, and ears. Injuries to any other body part, or a combination of two scheduled members, falls under “other cases.”
Industrial loss is triggered only for those awards that fall under “other cases.” When an injury is to a scheduled member, the loss of wage earning capacity is presumed.
When the Commission is determining the amount of disability under “other cases,” the Commission is making a determination that involves, among other things, (1) the nature of the physical injury, and (2) the occupation, experience, training, and age of the injured worker at the time of the injury.
For situations falling under “other cases,” compensation is not solely for the injury; but also incorporates the impact on earning capacity.
When Should the Attorney Make an Industrial Loss Argument?
- If the injury occurs to more than one scheduled member, or falls under “other cases” look to see if the injury causes a loss in wage earning capacity.
- Earning capacity is not the same as post-injury wages. Simply making less money is not industrial loss per se. However, pre-injury wages versus post-injury wages are the strongest evidence of industrial loss, even if not conclusive.
- If the claimant is unable to earn the same or more than prior to the accident, then look to the claimant’s age, training, experience in the occupation to argue to the Commission that there is an industrial loss.
- Are there permanent work restrictions that prevent the claimant from doing the pre-injury employment? This is also a factor to considering when presenting industrial loss to the Commission.