In claims that involve both injuries to the spine and extremities, at the time of permanency, a claimant may obtain evidence of a classification and a schedule loss of use.
In the past, in order to collect a schedule loss of use, there had to be a finding of no permanency to the classifiable sites, relying upon Taher vs. Yiota Taxi, Inc., 162 AD 3d 1288, 78 NYS 3d 500 (3rd Dept. 2018) motion for lv to appeal den. 2019 LEXIS 232 (Court of Appeals, Feb, 21 2019). The Appellate Division reversed this rule, holding that the mere “finding” of a permanent partial disability to a classifiable site, with no compensation being paid for that finding, does not prevent the payment of a schedule loss of use award to another body part. The Board did not follow this decision, and subsequent appeals ensued (Matter of Arias vs. New York City, Matter of Saputo vs. Newsday and Matter of Fernandez vs. New York University Benefits).
These appeals resulted in the procedure now being followed by the Board by making reference to the Arias vs. City of New York, 182 AD 3d 170 (3rd Dept. 2017) and Board Subject Number 046-1211 “Procedure for Determining Awards for Certain Schedule Losses of Use.” For claimants who are working without any lost time, the significance of these two kinds of permanency opinions can be strategically important when evaluating future indemnity exposure. Based upon Arias, a claimant working without lost wages can immediately be paid a schedule loss of use award, while simultaneously being classified with a permanent disability and loss of wage earning capacity. The classification is not payable, but is a value for which the carrier is responsible for setting reserves, should the claimant ever lose time from work. Should a classification later be sought, a credit can be taken against any prior schedule loss of award paid.
Example: Claimant has an established right shoulder and low back claim with an average weekly wage of $500.00. Claimant is found to have a 25% SLU of the arm and a Class 3, Severity B impairment of the Lumbar Spine, classified with 40% Loss of Wage Earning (275 weeks). Claimant is working full duty without any lost wages. A 25% SLU of the arm is payable now to Claimant = 78 weeks x $333.33 = $25,999.74. A year later, Claimant is removed from work due the established low back condition, and seeks to collect lost time at the 40% PPD (rate is $133.33, but statutory minimum rate applies at $150.00) over 275 weeks = $41,250.00 less the credit for the 25% SLU of the arm paid. $15,250.26 is the added exposure should the claimant go out of work. (That exposure could always increase if there is a change in condition).
Consideration of stipulating to a schedule of loss should also involve negotiating a permanent partial disability/loss of wage earning capacity in these cases. The analysis of indemnity exposure should be carefully considered as these negotiations take place.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis. If you have any questions about this or any other issue, contact Shane E. Armstrong at sarmstrong@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
