Law Technology

Workers Comp: Loss of Earning Capacity

Frequently when someone gets hurt on the job, they get well enough to work, but not in the same job and can’t earn as much money. South Carolina’s code to deal with that is 42–9–20, which reads:

§ 42-9-20. Amount of compensation for partial disability.

   Except as otherwise provided in 42-9-30, when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as provided in this chapter, to the injured employee during such disability a weekly compensation equal to sixty-six and two-thirds percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than the average weekly wage in this State for the preceding fiscal year. In no case shall the period covered by such compensation be greater than three hundred forty weeks from the date of injury. In case the partial disability begins after a period of total disability, the latter period shall not be deducted from a maximum period allowed in this section for partial disability.

In short, you get 2/3 of the average weekly difference of what the client was making and what they can make now, multiplied by 340 weeks. Let’s see how that works. For every dollar discrepancy, the injured worker would get $.667. Over a 40 hour work week, that comes out to $26.68 difference per week. Let’s see how it runs out.

$1 per hour – Loss of Earning Capacity in 40 hour Work Week

$9,071.29 = $.667 2/3 of difference x 40 = $26.68 x 340

So we have the following, assuming a 40 hour workweek:

• $1 per hour = $9.071.29
• $2 per hour = $18,142.40
• $3 per hour – $27,213.60
• $4 per hour – $36,284.80
• $5 per hour – $45,356.00
• $6 per hour – $54,427.20
• $7 per hour – $63,498.40
• $8 per hour – $72,569.60

So it can add up pretty quick. So you need a vocational report to establish the loss of earning capacity and also according to Singleton v. Young Lumber Co. and Brown v. Owen Steel Co., you need to have more than one body part to bump out of the scheduled members of 42–9–30.

Full post as published by South Carolina Trial Law Blog on February 12, 2009 (boomark / email).