Month – May 2013

What Is A Schedule Loss of Use (SLU) Award?

FAQs MMI Permanency Schedule Loss of Use (SLU)

Under New York Workers’ Comp law, a Schedule Loss of Use (SLU) award may be made when a claimant has reached maximum medical improvement and the claimant’s body part(s) have a permanent loss of use as a result of their work-related injury.

There are two types of permanent disability benefits (Schedule Loss of Use and Non-Schedule/Classification); the type of benefit a claimant is eligible for depends on the body part injured.

A SLU occurs when an employee has permanently lost use of an upper extremity (shoulder, arm, hand, wrist, finger), lower extremity (hip, leg, knee, ankle, foot, toe), or eyesight or hearing. Compensation is limited to a certain number of weeks based on the body part and severity of the disability, according to a schedule set by law. Temporary benefits that have been paid are deducted from the total SLU award. [Source]

The law specifies how many weeks of benefits a claimant will receive for their disability. The Schedule Loss of Use award is based on the body part injured and how much permanent damage has been done to that body part. Each body part has a specific number of weeks the claimant will be entitled to if there is a permanent disability.

The maximum SLU award is for 100% loss of use of the arm. A 100% SLU of the arm equals 312 weeks of benefits. If the claimant is found to have a 35% loss of use of the arm, this equates to 109.2 weeks. The weekly benefit is equal to the claimant’s temporary total degree of disability benefit.

Example:

  1. Claimant injures her right arm
  2. NY WCL allows 312 weeks maximum for an arm injury.
  3. Claimant found to have 35% SLU of her right arm
  4. 35% of 312 weeks = 109.2 weeks
  5. Claimant had pre-injury Average Weekly Wage of $900. Two-thirds her average weekly wage (temporary total rate) is $600.
  6. $600 a week for 109.2 weeks = $65,520 award to claimant.
  7. Carrier/self-insured employer may take credit for prior indemnity benefits paid to claimant.

Typically, either the claimant’s treating physician or the IME will opine the claimant has reached MMI and has a permanent disability. If the body part with the permanent loss of use is a body part which requires a SLU award the doctor will provide an opinion for a loss of use. The opposing party will then produce their own permanency report opining on the claimant’s Schedule Loss of Use. There are times when both the claimant’s treating doctor and the IME will agree to the SLU. However, typically this issue has to be litigated. Often the parties will stipulate to a compromised SLU award.

The claimant’s treating physician should submit their permanency report to the Board on form C-4.3.

Physicians should base their Schedule Loss of Use findings on the Guidelines for Determining Permanent Impairment which are very specific.

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Board Announces New Minimum and Maximum Weekly Benefit for Workers’ Compensation Claims

WCB Announcements

The Board has announced the maximum and minimum weekly benefits are to be increased.

The new minimum weekly benefit of $150 per week applies to workers’ compensation claims with dates of accident or disability on or after May 1, 2013. The Board last raised the minimum from $40 per week to $100 per week in April 2007.

The new maximum weekly benefit will increase to $803.21 effective July 1, 2013. This maximum weekly benefit effects claims with a date of accident or disability from July 1, 2013 through June 30, 2014. The maximum was previously $792.07 per week, since being increased in July 2012.

Make Sure To Meet The Requirements of Section 137 To Avoid Having IME Report Precluded

IME Practice Tips

Section 137 of the New York Workers’ Compensation Law and 12 NYCRR §300.2 governs Independent Medical Examinations. It is imperative that you, the IME physician and your vendor meet the requirements of Section 137 or you run the risk of having your IME report precluded by the WC Law Judge.

Nothing is more frustrating then receiving a favorable IME report and then finding out that a basic requirement in filing the report was not followed and therefore the report is likely to be precluded.

Section 137 has eleven specific requirements. The most common process flaws involve these two basic requirements:

1. A copy of each report of independent medical examination shall be submitted by the
practitioner on the same day and in the same manner to the board, the
insurance carrier, the claimant’s attending physician or other attending
practitioner, the claimant’s representative and the claimant

It is important that each of the above parties is sent the IME report, failing to send the report to one of the parties could result in the IME report being precluded.

2.  The claimant shall receive notice by mail of the scheduled independent medical examination at least seven business days prior to such examination. Such notice shall advise the claimant if the practitioner intends to record or video tape the examination, and shall advise the claimant of their right to video tape or otherwise record the examination. Claimants shall be advised of their right to be accompanied during the exam by an individual or individuals of their choosing.

If you don’t provide the appropriate notice, expect the report to be precluded.

Did you follow the correct procedures but the claimant failed to appear for a scheduled Independent Examination? Here are some recommendations.

If you wish to have monthly NY workers’ compensation updates sent to your inbox, feel free to sign up for our monthly newsletter here. You can also find my contact information here.

Claimant Failed To Appear For Scheduled IME, What’s The Next Step?

FAQs IME

If you are the employer/carrier it can be frustrating when you schedule the claimant for an Independent Medical Examination and they fail to appear for the scheduled examination. It can be even more frustrating if the carrier is under Board direction to continue awards.

The first thing you should do is verify that the notice of examination was sent to the claimant’s correct mailing address. Often, the reason why the claimant did not appear for the IME you or the vendor scheduled is because the notice informing them of the examination was sent to the wrong address.

If the notice was sent to the correct address, then you should file an RFA-2 requesting the Board schedule the case for a hearing. Indicate on the RFA-2 that awards and/or medical benefits to the claimant should be suspended due to their failure to appear for a scheduled IME.

Important note: If the carrier is currently paying the claimant awards under direction of the WCB, the carrier cannot suspend benefits without the approval of the Board.