On June 14, 2018, the Third Department of the New York State Appellate Division issued the decision Matter of Taher v. Yiota Taxi. In Taher, the Third Department addressed the question of whether a claimant may receive both a schedule loss of use (SLU) award and classification arising out of the same work-related injury at the time of permanency. Ultimately, the Third Department held that a claimant cannot receive both a SLU award and be classified with a loss of wage earning capacity at the time of permanency. Specifically, the Third Department wrote:
“[A] claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award, because an SLU award and an award for permanent partial disabilities are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability arising out of the same work-related accident would amount to duplicative compensation. Nevertheless, all impairments sustained by a claimant, whether resulting from schedule or nonschedule injuries, must be considered in determining lost wage-earning capacity attributable to a nonscheduled permanent partial disability classification. However, in unique circumstances where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award.”
Following Taher, the question of “can a claimant, who has sustained an injury to a schedule site and a nonschedule site, with medical evidence of permanency to both, receive a schedule loss of use award if working at the time of permanency?” arose. As discussed below, the Third Department and subsequent board panel decisions have answered this question with a resounding “no.”
On the same day as Taher, the Third Department issued Matter of Tobin v. Finger Lakes DDSO et al. In Tobin, the Third Department specifically stated that a “claimant may not receive both a schedule loss of use award and a nonschedule permanent partial disability award for injuries arising out of the same work-related accident.”
Following the above decisions of the Third Department, the New York State Workers’ Compensation Board has issued a progeny of decisions that affirm the holding of Tobin that a claimant may not receive both a schedule loss of use award and a nonschedule permanent partial disability award for injuries arising out of the same accident.
Furthermore, the board has clarified that a claimant is not entitled to a schedule loss of use award in the “unique circumstance” as described in Taher (medical evidence of permanency to a schedule and non-schedule site and no initial award made). In doing so, the board noted that Taher failed to address the amenability provisions of the 2012 and 2018 Permanency Guidelines, which specifically state that no residual impairments must remain in the systemic area before a claim is considered suitable for schedule evaluation of an extremity.
The board has also extended the above precedent and reasoning to refuse to approve stipulations between parties that classify a claimant and award a claimant a schedule loss of use award when there is medical evidence of a permanent partial disability and schedule loss of use. In Town of Penfield, the board refused to approve a stipulation awarding a claimant a 30 percent loss of wage earning capacity and a 20 percent schedule loss of use award to the right arm. In doing so, the board relied on the precedent of Tobin to deny approval of the stipulation between the parties and directed both parties to submit medical evidence of permanency to all established sites.
In light of the above, carriers can rely on current precedent to classify a claimant without the fear of also having to compensate the same claimant with a schedule loss of use award. However, the recent practice of the board demonstrates that the parties also will not be able to stipulate to schedule loss of use findings when there is medical evidence of permanency to a nonschedule site. Thus, even if both parties are amenable to a schedule loss of use award, the ability to compromise on this issue may be limited by the board. The parties can attempt to obtain medical evidence opining no permanency to the nonschedule sites; however, it is unclear if the board will approve the stipulation if the claim involves a nonschedule injury site. Due to this uncertainty of approval of stipulations by the New York State Workers’ Compensation Board, best practice may be to attempt to resolve the matter via a Section 32 settlement.
 It is important to note that the NYS Court of Appeals has not issued a decision on this issue to date.