PRACTICE TIP: When negotiating a schedule loss of use award involving multiple extremities, first determine whether periods of temporary total disability can be assigned to individual extremities in order to avoid additional weeks of indemnity benefits due to protracted healing.
In the case of Department of Correction, WCB G127 1149 (7/5/19), the claimant sustained injuries arising out of the same accident to the left and right shoulders. At the time of permanency, the parties agreed that the claimant sustained a 27.5% SLU of the left arm and a 50% SLU of the right arm. However, the parties disagreed as to the calculation of protracted healing. The claimant argued in favor of 87.8 weeks of protracted healing to be added to the schedule awards. The claimant arrived at this calculation by deducting only 32 weeks from the periods of total disability arising out of the work injury which represents the statutorily assigned healing period for an arm injury. The carrier argued in favor of deducting 64 weeks representing the healing period for each arm.
On review, the Board Panel held that where “discreet periods of temporary total disability are each attributable to a single cause, such as a recovery from surgery to a single site of injury” then the application “of any protracted healing periods will be limited to that single injury site.” The Board Panel then held that because the claimant underwent separate surgeries resulting in “periods of temporary total disability” which were “attributable solely to the recovery from surgery to each shoulder”, the 32 weeks healing period should apply to each shoulder resulting in only 57.6 weeks of protracted healing when applying the healing period to the periods of temporary total disability arising out of each surgery. Thus, if the carrier is capable of assigning periods of total disability to discreet extremities as opposed to a combination of extremities then multiple healing periods can be applied to the same claim. Otherwise, only the highest healing period for the involved extremity will be applied resulting potentially in a greater level of protracted healing at the time of permanency.
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 David L. Niefer at dniefer@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.
