Under New York Workers’ Compensation 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. The concept of a “protracted healing period” only comes into play for “schedule loss of use” awards and serves to increase the value of the award.
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]
When Does A “Protracted Healing Period” Apply?
New York defines the “normal healing period” for scheduled injuries. In cases where the claimant remained totally disabled for a period of time in excess of the established healing period, additional compensation payments are required.
The Law provides as follows at Section 15(4-a):
In case of temporary total disability and permanent partial disability both resulting from the same injury, if the temporary total disability continues for a longer period than the number of weeks set forth in the following schedule, the period of temporary total disability in excess of such number of weeks shall be added to the compensation period provided in subdivision three of this section: 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.
So, where the claimant remained totally disabled after the periods of time set forth by the Legislature, the employer/carrier is exposed for additional comepnsation under the Law.
If an injured worker made $600 per week and lost his thumb, according to the Scheduled Loss of Use chart, he would be entitled to 100% loss of the thumb – 75 weeks of compensation. This would be paid at a rate equivalent to 2/3rds (66.6%) of her average weekly wage – or $400 per week. So in this example, the loss of the thumb would give rise to an award of $30,000 for permanent disability. The other benefit the injured worker would receive is medical treatment for life in regards to the lost thumb.
However, what if prior to the claimant being classified with 100% Schedule Loss of Use of the left time the claimant was previously awarded more than 75 weeks of benefits at the total rate? For example, the claimant was previously awarded 90 weeks of benefits at the total disability rate? In that case, the added weeks of lost time would be “Added” to the scheduled award that exceed the “normal healing period,” as set forth by the statute. In the case of the thumb, the “normal” healing period is set at 24 weeks (WCL Sect. 15(4-a)). So, instead of getting nothing as would be due under the Statute without the “protracted healing” provision this claimant would actually be owed the difference between the “normal healing period” for the thumb (24 weeks) and the actual total disability time (90 weeks) or an 66 addiitonal weeks of compensation: $26,400 in “new” money.
Temporary Partial Disability Periods
It is important to note, periods when the claimant is ruled to have a temporary partial disability, do not result in any added money for a protracted healing period. So, in the example above, if the claimant received temporary partial benefits at the marked (75%) rate for 90 weeks, the claimant would not be due any additional money to the amount set forth in the schedule loss of use chart.
For this reason, as much as possible, when dealing with schedule loss of use body parts/conditions the carrier should attempt to limit as much time as possible awards are made at the temporary total rate to avoid a potential additional ‘protracted healing period” award to the claimant at permanency.
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