Tag Archives: SLU

Video: How Attorneys Evaluate Claims for Exposure in New York

This is the video from our November 19, 2018 live webinar presented by attorneys John Marzolla and Tim Kane. The experienced workers’ compensation defense attorneys discuss their approaches to evaluating New York workers’ compensation claims for exposure.


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Taher v. Yiota Taxis Update: Third Fridays Podcast


Back in July, Andrea Abudayeh joined Christian Sison on the podcast to discuss the game-changing court case Taher v. Yiota Taxi decided by the Appellate Division. Now that Judges have implemented the Taher concepts at the trial level for the past four months, did Andrea and Christian get it right with their predictions? The attorneys also discuss the news that Jamaica hearing point is now going virtual on December 1, 2018.
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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.

Appellate Division Issues Decision Clarifying How To Calculate Schedule Loss of Use For Shoulder Injuries

Case: Matter of Maloney v Wende Correctional Facility

Issue
In determining the Schedule Loss of Use (SLU) percentage applicable to a shoulder injury, whether it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction or if this is duplicative and results in an inflated SLU percentage.

Facts of Case
Claimant was a Correctional Officer who injured himself while working in July 2013. The claim was established for a right shoulder injury. At permanency, the claimant’s treating physician opined claimant had 90% SLU of the right arm while an IME opined the claimant had 50% SLU of the right arm. Following litigation of the issue, the law judge credited the IME opinion over that of the treating physician and found claimant to have 50% SLU of the right arm. The Workers’ Compensation Board affirmed the Law Judge’s finding and the claimant appealed to the Third Department.

Decision
Board decision is affirmed, finding claimant to have 50% SLU of the right arm. The Court noted “the Board is vested with the authority to resolve conflicting medical opinions concerning the SLU percentage to be assigned to aspecific injury.” Additionally, the Court noted “judicial review is limited, and the Board’s determination will not be disturbed as long as it is supported by substantial evidence.” Continue reading Appellate Division Issues Decision Clarifying How To Calculate Schedule Loss of Use For Shoulder Injuries

Video: Evaluating Permanency Exposure in New York Workers’ Compensation Claims

Attorneys Tashia Rasul and Tim Kane lead a presentation and answer questions on evaluating exposure for Loss of Wage Earning Capacity awards in New York workers’ compensation claims.

Subject: New York, Workers’ Compensation Law, LWEC, Permanency, Exposure
Date Presented: November 20, 2017
Presenter(s): Tashia Rasul and Tim Kane
Run time: 29:30


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Explainer: Permanency Benefits in New York

The New York Workers’ Compensation Law allows for four types of benefits to be provided to injured workers: medical treatment, lost time wage replacement, death benefits, and permanent disability benefits. This article discusses the three types of permanent disability benefit available to the injured worker:

  • Scheduled loss of use.
  • Classification/LWEC
  • Permanent Total Disability.

The employer is exposed for permanent disabilities which the claimant may prove. These three types of disability are compensated at different rates.

Scheduled Loss of Use.

Values come from tables which establish the compensation for loss of limbs, vision, and hearing in terms of ‘weeks of compensation.’ Scheduled loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule use loss of the arm equates to 31.2 weeks of compensation. The award is the number of weeks of compensation according to the schedule multiplied buy the workers’ maximum rate (2/3rd of Average Weekly Wages subject to the maximum and minimum rates in place according to the year of the accident). Prior payments of compensation and wages (all wages, not just those paid at the compensation rate) are deducted from the award. Continue reading Explainer: Permanency Benefits in New York