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Workers’ Compensation – Schedule Loss of Use (2015)

The Workers’ Compensation Law includes awards for injuries that result in permanent loss or loss of use of limbs (arms, legs, hands, feet, fingers or toes), vision loss, or hearing loss. The law defines those awards in “weeks of compensation,” and the Workers’ Compensation Board issues decision notices showing that the award is payable during actual calendar weeks.

If a worker is being paid for another injury during the same weeks covered by a “schedule loss” award, the awards technically overlap. As the result of a case called Salvet, when this occurs, the worker could loss all or part of the award for permanent injury to a limb because a worker is limited to payment of the maximum weekly compensation rate in any given week.

Our client faced exactly this situation, and under existing law would have lost over 90% of his award for permanent loss of function of his hands because he was disabled from work due to a back injury. We argued that the “weeks” in the law for a schedule loss of use are simply the way the value of the award is calculated, that they do not match any particular calendar weeks, and that therefore the awards did not truly “overlap.” We also proposed a rule that would permit full payment of both awards.

The Workers’ Compensation Board agreed with our new and novel argument, and created a new legal rule that permitted full payment of both awards. The insurance company appealed, and the Appellate Division, Third Department also agreed with our argument.

This decision changed the law for thousands of injured workers, making certain they receive full compensation for injuries that result in the permanent loss or loss of use of limbs.

Read the Walczyk decision here.

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