The New York State Supreme Court Appellate Division recently decided the case of Taher v. Yiota Taxi, Inc., in which it addressed the specific situation where a claimant is classified with a permanent partial disability and designated with a loss of wage earnings capacity (LWEC), but has both classifiable and schedulable conditions. The court has determined that a claimant may ultimately receive a schedule loss of use award (SLU) even if they are classified.
Previously, it has been the practice of the Board to withhold an award for a permanent partial impairment when the claimant had returned to pre-accident employment with no loss of wages. That practice was applied to claimants who had both schedulable and classifiable conditions. A claimant in that situation would be classified and awarded a LWEC. The loss of wage earning capacity is translated into a number of weeks, for which the claimant receives benefits at rate determined by the LWEC percentage. If a claimant were working full-time at their pre-accident wages, they would not be entitled to their LWEC award, if or until they went out of work in the future for causally related reasons. The schedulable injury was taken into account when setting the LWEC and would usually add to the overall exposure however, the claimant would not receive any benefits unless their circumstances changed and they went out of work.
The court has actually touched on his topic before in Gallman v. Walt’s Tree Service, Inc. back in 1974. In that case, the court made it clear that a claimant could not receive an award for both a partial permanent impairment and facial disfigurement at the same time. However, the court determined that a claimant could receive an initial award for facial disfiguration even if they had been classified with a permanent partial impairment if they were back to work at their pre-accident wages. As long as the claimant is not receiving both awards at once, the court determined that the claimant was not receiving double compensation. To that affect, the court made it clear that the carrier would be credited for the initial award. Should the claimant suffer a change in circumstances and go out of work in the future, the credit would be applied against any future LWEC payments. Similar to Taher, the claimant in Gallman would not have been entitled to his permanency award under the Board’s previously established procedures because he had returned or exceeded to his pre-accident wages.
In Taher, the court applied that same principal to SLU awards. A claimant who is classified with both schedulable and classifiable conditions may be awarded an SLU, but that payment will act as a credit in event the claimant goes out of work in the future and is due payments for their permanent partial disability. As a practical matter, it is the claimant’s burden to raise the issue. The claimant must then present medical evidence such as a C-4.3 form, supporting their entitlement to an SLU award.
The Decision will certainly have an effect on how parties strategize when it comes to litigating permanency and settlement values. Rather than just a chance of receiving awards in the future if the claimant goes out of work, they may be entitled to an initial award up front.