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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.

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Our Construction Defense Team is led by Partner Tashia Rasul, Esq. This dedicated team exclusively handles workers' compensation claims arising out of construction accidents. Tashia’s expertise lies in complex coverage issues, wrap-ups, and claims arising out of catastrophic injuries. As part of her practice, Tashia frequently visits accident sites and provides on-site training to employers regarding workers' compensation claims, as well as to develop defense strategies. Tashia is the author of the “Defending Construction Claims in New York” Handbook, available here.

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