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:
- Claimant injures her right arm
- NY WCL allows 312 weeks maximum for an arm injury.
- Claimant found to have 35% SLU of her right arm
- 35% of 312 weeks = 109.2 weeks
- Claimant had pre-injury Average Weekly Wage of $900. Two-thirds her average weekly wage (temporary total rate) is $600.
- $600 a week for 109.2 weeks = $65,520 award to claimant.
- 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.
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.
