Friday F.A.Q.: Does Increased Wage Expectancy Apply in Every Case?

No, “Increased Wage Expectancy” does not apply to every New York case. “Increased Wage Expectancy” is a concept in New York Workers’ Compensation cases that allows for enhanced awards reflect future wage loss suffered by workers under the age of 25, who, under normal conditions would be expected to have increases in wages. It is aimed at workers who suffer from a permanent injury that would prevent them from obtaining wage increases in the future.

Per WCL §14(5), “if it be established that the injured employee was under the age of twenty-five when injured, and that under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages”. Generally, except in certain “atypical situations,” a finding of future wage expectancy should be limited to the same or similar employment that the claimant was in at the time of the injury. Matter of Lamiano v. Sousa & Sons, 158 AD2d 818 (1990).

To make it simple, the elements that must be considered in addressing wage expectancy are:

  1. The claimant’s age; the claimant must be under 25 years old at the time of the accident
  2. Is there a permanent impairment; wage expectancy is addressed at the time of permanency, when permanent impairment awards are to be made.
  3. Can the claimant must prove that the permanent impairment will negatively impact his future earnings?
  4. Future earnings is limited to the employment, or a similar one, in which the claimant was injured

The claimant usually supplies a driver’s license or other form of identification as proof of his age, and permanent impairment is evidenced by medical reports and testimony if necessary. When a claimant raises increased wage expectancy, the employer is directed to produce a “Lamiano” wage statement to show what the claimant’s salary could be in approximately seven years if he were to remain in the same position, or if he would reasonably be expected to be promoted to a higher position within that time. By requiring that the employer produce such a payroll reinforces the notion that increased wage expectancy should reflect increased earnings in the same or similar employment.

However, claimants oftentimes attempt to argue that they have a “long term” plan to be in a different profession and that their salary should be increased to reflect their potential earnings in that different profession. In “atypical situations”, the Board will take this into consideration, but the claimant must show that the plan was in place and actively pursued at the time of the injury. For example, a part-time cashier who was enrolled in nursing school and attending full time to pursue that career would get the benefit of the “atypical situation” consideration. Otherwise, any increased wages would be reflective of the same or similar employment.

Then, if the Board finds that the claimant is entitled to increased wage expectancy, the average weekly wage would be adjusted to the anticipated increased wage for purposes of calculating the permanency awards. That is, if the claimant’s average weekly wage is $300, and the Board finds that her increased wage expectancy would be $600, this amount would be used to calculate permanency awards.

Tashia Rasul is an Partner at Lois LLC where she defends employers and carriers in New York workers’ compensation claims. Tashia chairs the Firm's Diversity Committee and is active in the national Alliance of Women in Workers' Compensation. She can be reached directly at trasul@lois-llc.com or 201-880-7213.