The 2017 Schedule Loss Debate
In 2017, the Workers’ Compensation Board proposed changes to its guidelines that would have significantly reduced compensation for...
Section 15(3) of the Workers’ Compensation Law covers awards for “permanent partial disability.” Subsections (a) through (u) provide “schedules” for permanent loss or loss of use of the hands, feet, arms, legs, fingers, toes, vision, hearing, and for facial disfigurement. An injury to one of those body parts is generally considered ready for a permanency evaluation when (1) more than six months have passed since the accident or the most recent surgery; (2) no further medical treatment is needed, and (3) the condition is medically stable.
A “schedule loss” award translates into a certain amount of compensation depending on which part of the body is involved (the statutory “schedule”), the date of accident, and your pre-accident wage. Any payments for time out of work are deducted from the award, and any actual lost earnings after the award is entered are also considered to be included in the award (and are therefore not payable).
Any other kind of permanent partial disability is covered by Subsection (w) of Workers’ Compensation Law Section 15(3). These usually involve injuries to the neck, back, or head, although sometimes an injury to a limb can qualify (if it is medically unstable or involves severe chronic pain). The finding of a permanent partial disability under Subsection (w) is usually referred to as a “classification” of permanent partial disability.
Unlike schedule loss findings, which result in an award of compensation even if there is no time lost from work, a classification results in no compensation except for time out of work (or reduced earnings).
Sometimes, a worker will injure both a “schedule loss” site (such as an arm) and a “classifiable” site (such as a back). In this situation, if there is no permanency to the back injury, then there is no question that s/he is entitled to payment of the schedule loss award.
In recent years, however, the Workers’ Compensation Board has decided that if there is permanency to a classifiable site, then no compensation should be paid for the schedule loss injury – even if no compensation is being paid for the classification because the worker has no loss of wages. In our firm’s appeal in Matter of Taher v. Yiota Taxi, Inc., 162 A.D.3d 1288, 78 N.Y.S.3d 500 (3rd Dept. 2018) mot. to rearg. den. (3rd Dept. Nov. 1, 2018), mot for Iv. to appeal den. 2019 N.Y. LEXIS 232 (Court of Appeals, Feb. 21, 2019), the Appellate Division reversed the Board’s decision on this issue, holding that the mere “finding” of a permanent partial disability to a classifiable site, with no compensation being paid for that finding, does not prevent the payment of an award for a schedule loss of use to another body part. The Court correctly held that if the worker later has a wage loss that exceeds the value of the schedule loss, then the employer or insurer can always take credit for its previous payments against the later claim.
Unfortunately, the Board refused to follow the Court’s decision in Taher, and as a result our firm pursued three more appeals in Matter of Arias v. City of New York, Matter of Saputo v. Newsday, and Matter of Fernandez v. New York University. On February 27, 2020, the Appellate Division decided all three of these appeals in our favor, and required the Board to follow the rule laid out in the Taher case.
These landmark decisions are a tremendous benefit to injured workers, and will help ensure that they receive their rightful compensation benefits under the law.
You can read the full decision here. Arias v. City of New York