The happening of an injury is not enough (by itself) to warrant the payment of an award. Awards are issued for residual permanent impairment. If the claimant is due an award, the amount of money the claimant receives will depend on the nature and degree of the loss. The Workers’ Compensation Law breaks down the amount payable into two broad categories: “scheduled losses” and “unscheduled losses.” The concept of “protracted healing period” only comes into play for “schedule loss of use” awards and serves to increase the value of settlements.
Scheduled Loss of Use.
“Scheduled loss of use” relates to injuries to specific, enumerated body parts which are listed on a “scheduled loss of use chart” (found in this book). This is a fixed amount of compensation for injuries to fingers, toes, hands, feet, arms, ankles, knees, etc. In other words, the Workers Compensation Law states that if you lose your thumb in accident, you get a fixed benefit – a number of weeks of compensation times your weekly rate – which is determined by the injury.
Every “scheduled” body part has a maximum value – expressed in terms of weeks – set forth by the Legislature at WCL 15. By common usage, injuries to the “ankle” are compensated in terms of the statutory foot and injuries to the wrist are compensated in terms of the statutory “hand.” Knee injuries are compensated in terms of the statutory “leg.”
When “Protracted Healing Period” Comes Into Play.
New York defines the “normal healing period” for scheduled injuries. In cases where that 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.
Example.
If an injured worker made $200 per week and lost her thumb, according to the Scheduled Loss of Use chart, she 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 approximately $133.34 per week (two thirds of $200 per week). So in this example, the loss of the thumb would give rise to an award of $10,000 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 the claimant actually lost more than 75 weeks from work? For example, if the claimant lost 90 weeks from work? 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 actaully be due the difference between the “normal healing period” for the thumb (24 weeks) and the actual lost time (90 weeks) or an 76 addiitonal weeks of compensation: $10,133.84 in “new” money.
Scheduled Loss of Use – Checklist.
- Has the claimant reached MMI?
- Has the claimant’s physician issued a C-4.3 Report (Doctor’s Report of MMI/Permanent Impairment?
- Has the IME physician given an estimate fo scheduled loss of use?
If the answer to two or more of these questions is “yes” then consider the potential for a scheduled loss of use award or settlement.
Have any questions about the impact of protracted healing period on a scheduled loss of use settlement? Contact Greg Lois.
