Claimants may be entitled to schedule loss of use (SLU) awards for permanent injuries sustained to arms, legs, hands, feet, eyes, fingers, and toes, known as “schedule injuries.” Injuries sustained to the head, neck, and back, known as “nonscheduled injuries,” are typically subject to classification of a permanent partial disability (PPD) or permanent total disability (PTD), based on loss of wage earning capacity. An issue arises when a claimant has injuries to schedule and nonscheduled sites.
In 2018, the New York State Supreme Court Appellate Division Third Department held that in the unique circumstance where a claimant has schedule and nonscheduled injuries, was classified but working at pre-injury wages, the claimant may be entitled to a SLU award. Taher v. Yiota Taxi, Inc., 162 A.D.3d 1288, 1290, 78 N.Y.S.3d 500, 503 (N.Y. App. Div. 2018), leave to appeal dismissed, 32 N.Y.3d 1197, 119 N.E.3d 790 (2019). Prior to this decision, claimants with schedule and nonscheduled injuries could not receive a SLU award if there was permanency to nonscheduled sites. Therefore, a claimant would not receive their classification award unless they were out of work or working at reduced earnings.
This aspect of the law is continuing to change. In Matter of Mill Mall Services Inc., 2019 NY Wrk Comp G1228116, the board panel held that a claimant with both schedule and nonscheduled injuries, whose doctors opined there was permanency to nonscheduled injuries, is not entitled to SLU for the schedule injuries. The board panel justified this by citing to Section 1.5 of the 2012 and 2018 Permanency Guidelines, which state there must be no residual impairment to nonscheduled injuries before a schedule loss of use evaluation can be done. Further, the board panel targeted Taher by stating it did not address the 2018 Permanency Guidelines requirement mentioned above.
On the same date, the board panel decided Matter of Suffolk County Police Dept., 2019 NY Wrk Comp G1243118, where a claimant also had schedule and nonscheduled injuries. The board panel had previously found that the claimant has a permanent medical impairment of the neck with a severity B ranking. However, claimant’s doctors found SLU to the schedule sites. The claimant’s counsel argued that the claimant should be found to have zero percent loss of wage earning capacity and that the claimant should receive a SLU award for the extremities, citing that the claimant had no economic loss. The board panel also cited to the 2018 Permanency Guidelines as in Matter of Mill Mall Services Inc. and rescinded the Law Judge’s SLU award.
So what does this mean for SLU awards going forward? These decisions were recently released on April 2, 2019. We anticipate this issue will be brought to the Third Department. However, it appears that the board is heading towards disallowing SLU awards when the claimant has permanency to nonscheduled injuries and the claimant is working at pre-injury earnings.