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I have the dilemma of the person I am evaluating still retaining their job title and wage, but unable to perform a significant portion of their material and substantial duties. It has been several months and they are at or approaching maximum medical improvement. The referral source is requesting a lost earning capacity determination. Does anyone have any evidence based suggestions please for at what year lost earnings should be calculated? It would be ideal if there were resources for statistics by industry, DOT or SOC occupation, age, etc. as to how long one can maintain their wage and job title when unable to complete a certain percent of their job duties.

I have the dilemma of the person I am evaluating still retaining their job title and wage, but unable to perform a significant portion of their material and substantial duties. It has been several months and they are at or approaching maximum medical improvement. The referral source is requesting a lost earning capacity determination. Does anyone have any evidence based suggestions please for at what year lost earnings should be calculated? It would be ideal if there were resources for statistics by industry, DOT or SOC occupation, age, etc. as to how long one can maintain their wage and job title when unable to complete a certain percent of their job duties.

I am not sure this applies,. but just in case....  Odd Lot in labor market. (I have a few legal case summaries if needed)

'The term benevolent employer has been used to counteract the concept of folks not considered employable, or able to find suitable employment, due to the "Odd lot" doctrine found in some personal injury and workers' comp cases (see details below).  There are employers who are receptive to custom designing a job around a person's capabilities.  Supported employment options may fall into this category. Or an employer may have very high regard for an individual who was injured and custom design a specific job that goes well beyond reasonable accommodation in order to provide them with work.  If that person loses the job for some reason, it is unlikely that they will find another similar job.  So, admittedly subjective (as arguably are numerous concepts in our profession) the benevolent employer is one who perhaps is more altruistic, exceptionally compassionate, or otherwise willing to accept an employee without the usual competitive process (see additional definitions below).

Odd lot is defined as "any work that the client may be able to perform which would be of limited quantity, dependability or quality, and for which there is no reasonably stable market for their labor activities" (Clark v. Aqua Air Industries, 435 So. 2d 492, LA. App. 1983; Gilcrease v. J.A. Jones Construction Company, 425 So.2d 274 LA. App. 1982; Spring v. Department of Labor and Industries of State of Washington, 640 P. 2d 1, 1982; Haines v. State Accident Insurance Fund, 558 P 2d 367, Or. App. 1976).  This means that finding one or two jobs or custom job accommodations does not mean the person is competitively employable.

Suitable, gainful employment as follows:

            "Employment or self-employment which is reasonably attainable in light of the individual's age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practical and nearly as possible to [his] average weekly earnings at the time of injury" (440.49).   Some clients have successfully challenged the assumption that because they are able to perform the physical functions and they possess the aptitude to perform an occupation that it constitutes suitable employment. One case demonstrates the issue.  A licensed practical nurse was injured on the job.  The employer offered her a clerical position which she turned down.  Although the clerical job was within her physical limitations, it was not considered suitable employment because "Woods is a nurse, and she never expressed any interest in doing clerical work" (Workers Compensation Law Bulletin, 1992, 15 [10A], p. 7).

            Maryland similarly defines suitable, gainful employment as: "... employment, excluding self-employment, that restores the disabled covered employee, to the extent possible, to the level of support at the time that the disability occurred" (Workers Comp Law, LE, 9-670, p 212).  The law further states that in determining whether employment is suitable, gainful employment, the following shall be considered:  (1) the qualifications, interests, incentives, pre-disability earnings, and future earnings capacity of the covered employee; (2) the nature and extent of the disability of the covered employee; and (3) the current and future condition of the labor market.  Other states including Oregon, California and Minnesota, have also adopted guidelines which include personality and interest factors which often are over looked by vocational evaluations (Oregon's code OAR 436-120-005 [6]; California Workers' Compensation Code L.C. 4635 [f]; Minnesota MS 176.102 [13]). 

Competitive in this context is defined as the ability to identify a job, complete an application, interview, and compete in the open job market without rehabilitation support.

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Roger [Weed], [PhD]
roweed2009@gmail.com
Mount Dora, FL United States
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Original Message:
Sent: 07-24-2024 22:57
From: Jerrold M. Rutkove
Subject: Material and Substantial Duties

I have the dilemma of the person I am evaluating still retaining their job title and wage, but unable to perform a significant portion of their material and substantial duties. It has been several months and they are at or approaching maximum medical improvement. The referral source is requesting a lost earning capacity determination. Does anyone have any evidence based suggestions please for at what year lost earnings should be calculated? It would be ideal if there were resources for statistics by industry, DOT or SOC occupation, age, etc. as to how long one can maintain their wage and job title when unable to complete a certain percent of their job duties.