Friday F.A.Q.: Does Protracted Healing Period (“PHP”) Apply to Every Schedule Loss of Use (SLU) Award?

No! PHP Protracted Healing Period (“PHP”) does not apply in every case. PHP applies only to Schedule Loss of Use (SLU) cases where the claimant had a total disability for a period of time exceeding the “normal healing period” for his particular injury. PHP is determined as a number of weeks, and the claimant is compensated at the temporary total disability (TTD) rate for each week, in addition to the number of weeks he is entitled to pursuant to his SLU.

In order to determine how much PHP is applicable, we first need to determine the normal healing period for the body part in question.

NY WCL Section 15(4-a) lays out the healing period for the schedulable body parts:
Arm – thirty-two weeks
Leg – forty weeks
Hand – thirty-two weeks
Foot – thirty-two weeks
Ear – twenty-five weeks
Eye – twenty weeks
Thumb – twenty-four weeks
First finger – eighteen weeks
Great toe – twelve weeks
Second finger – twelve weeks
Third finger – eight weeks
Fourth finger – eight weeks
Toe other than great toe – eight weeks

Next, we need to determine how many weeks the claimant was totally disabled for. This is usually easily determined by the number of weeks the claimant was awarded TTD benefits for. Sometimes, if no payments were made, and there is no contradictory medical evidence (an IME), the claimant will rely on his doctor’s reports finding him at a total disability in order to calculate the total disability time period.

Let’s go through an example step-by-step to see how PHP applies.

Injured body part: arm.
TTD rate: $500
Normal healing period for the arm: 32 weeks
Number of weeks at a temporary total disability: 50 weeks
SLU of arm: 25%, which equates to 78 weeks
SLU value of arm: 78 weeks x $500 = $39,000
PHP: 50 weeks (total disability period) – 32 weeks (normal healing period) = 18 weeks
PHP value: 18 weeks x $500 = $9,000

In this example, the claimant would be entitled to 18 weeks of PHP compensation ($9,000) in addition to the SLU value of his claim ($39,000). Of course, with SLU awards, the employer gets to take credit for prior payments made to the claimant.

Practice Point: In cases that involve schedulable body parts, the employer must be cognizant of the length of time that a claimant is receiving TTD benefits. This is easily overlooked when there is a direction to continue payments at the TTD rate, and there are no future hearings scheduled to address degree of disability. It is therefore advisable that employers be proactive about obtaining an IME that comments on degree of disability and litigate the issue in order to obtain a finding of a partial disability. Curbing temporary total disability is the key to keeping PHP at bay.

Tashia Rasul is an Partner at Lois LLC where she defends employers and carriers in New York workers’ compensation claims and leads the Construction Defense Practice team. Tashia chairs the Firm's Diversity Committee and is active in the national Alliance of Women in Workers' Compensation. She can be reached directly at trasul@loisllc.com or 201-880-7213.