In New York, if you get hurt at work and your injury results in permanent impairment, you can be entitled to financial compensation. This compensation for permanent impairment can be in addition to the temporary disability payments you may have received while you were out of work due to your injury.
The type of permanent impairment benefits that you could be entitled to will depend on which body part(s) were injured. A Schedule Loss of Use Award – commonly referred to as a “SLU” – is a financial award typically paid in a lump sum that you can receive for injuries that involve permanent impairment to the following:
- Lower extremities (e.g., knees, hips, ankles, feet, toes)
- Upper extremities (e.g., shoulders, elbows, forearm, hands, wrists, fingers)
- Disfigurement (e.g., facial scarring, etc.)
- Vision Loss
- Hearing Loss
This article will discuss the basics of Schedule Loss of Use (“SLU”), but you should also know that if you suffer a permanent injury to a body part not mentioned above you could receive permanent impairment benefits for your loss of wage earning capacity (for example, a back or neck injury that results in permanent impairment). That will be the subject of a future post, so for now let’s dive a little deeper into SLU awards.
How do I know if I have a Schedule Loss of Use?
There are three basic steps to figuring out whether you have a SLU.
First, you must have a covered work-related injury to a lower extremity, upper extremity, vision loss, hearing loss, or disfigurement. For example, if you have a shoulder injury or a knee injury, that would be an injury that could qualify for a SLU in New York.
Second, you must be at maximum medical improvement (“MMI”) from your injury. MMI means that a doctor is of the medical opinion that your injury is unlikely to improve with further medical care. Another way of saying this is that you are at MMI when your recovery has essentially plateaued.
MMI typically happens around a year after the date of accident (or surgery), but it could happen earlier or later depending on the unique facts of your case. Your doctor will usually tell you when you are at MMI and you can always ask them about it as well.
Third, the doctor must determine that your injury has resulted in permanent impairment. Things that might qualify as permanent impairment include:
- Loss of function
- Decrease in range of motion
- Damage to bone, muscle, cartilage, tendons, nerves, blood vessels, or other tissues
- Disfigurement
- Scarring
- Hearing loss
- Vision loss
There are permanent impairment guidelines in New York that the doctor will use to determine your exact SLU percentage. Your doctor will probably be familiar with these guidelines, which can be found by visiting the New York State Workers’ Compensation Board’s website.
Once your doctor has determined that you are at MMI and have permanent impairment resulting in a SLU, the doctor will then prepare a medical report called a C-4.3. That report will be sent to the New York State Workers’ Compensation Board as well as the insurance company handling your claim. Your doctor should clearly state the exact percentage of your SLU in the report.
Can I get a SLU even if I returned to work? Or what about if I didn’t miss a single day of work due to my injury?
You can receive a SLU award in New York for your workers’ compensation claim even if you returned to work. The concept of SLU recognizes that even if you returned to work, there still may be permanent impairment to the body part you injured.
A common misconception of many injured workers in New York is that their case is over once they return to work. That is simply not true. Not only can you continue to receive medical treatment after you return to work, but you may also be eligible for financial compensation for permanent impairment.
In fact, even if you did not miss a single day of work you might still be eligible for a SLU award. This is because SLU is primarily focused on things like the function of the injured body part (loss of range of motion, etc.). This is why it can be important to see your doctor regularly through MMI and to consider having legal representation so that you don’t miss out on money that you might be owed.
How do I get paid for a SLU in New York workers’ compensation?
After the doctor sends the SLU report to the NYS Workers’ Compensation Board and the insurance company, there a few different things that can happen.
If the insurance company agrees with your doctor’s SLU opinion, they should inform the Workers’ Compensation Board (WCB) that they are accepting the SLU rating. Once they do this, the WCB will schedule a hearing to approve the SLU and direct payment.
If the insurance company disagrees with your doctor’s SLU opinion, they will likely send you to what is called an “Independent Medical Exam” (IME). You will be required to attend this exam where another doctor chosen by the insurance company will give an opinion on your SLU.
One thing that is important to know about the IME is this: the purpose of the IME from the insurance company’s standpoint is to discredit your doctor’s opinion so that the insurance company can pay you less. The doctor will be selected by the insurance company, only see you one time for just a few minutes, and then likely provide a SLU rating that is less than your doctor’s SLU rating.
Assuming the SLU percentages between the IME and your doctor are different, the issue of determining your SLU percentage will be litigated before a judge of the Workers’ Compensation Board. The judge will consider the medical reports and any other relevant records such as deposition transcripts of the doctors.
After hearing arguments from your side and the insurance company’s side, the judge will make the final decision on your SLU percentage. The percentage decided will be what determines how much money you get for your SLU.
How do I figure out how much money I get for a SLU?
As mentioned above, the final SLU percentage decided by the workers’ compensation judge will directly impact the amount of money that you get. Here is how it works, including a helpful hypothetical example further below:
The calculation for a SLU award is controlled by New York Workers’ Compensation Law. The simplest way of understanding it is that the percentage of impairment for a given body part will correspond to a certain number of weeks of temporary total disability benefits payable to you less any prior payments you received while out of work for that injury.
So to figure out your SLU award amount, you need to determine these six things:
- Your average weekly wage (AWW).
- Your temporary total disability (TTD) rate based on your AWW.
- The final SLU percentage decided by the board.
- Whether the “protracted healing period” applies.
- The amount of temporary disability benefits you received for your injury before returning to work.
- Whether there are any prior injuries to that body part that could result in apportionment.
To figure out your average weekly wage, your employer will send the board your payroll information for the 52 weeks prior to your date of accident on a form called the C240. The board will then use a calculation to determine your average weekly wage (AWW).
After your AWW is determined, the board will then calculate your temporary total disability (TTD) rate. The TTD rate will be two-thirds of your AWW subject to a state maximum and minimum.
Once your TTD rate is established, the board will figure out how many weeks of payment your SLU percentage translates to. The number of weeks is set by the workers’ compensation law and can be found here.
For each body part that could result in SLU, there is a maximum number of weeks. That maximum number would apply if the SLU percentage was 100%. Most SLU percentages will be well below 100% since that is typically reserved for the most severe injuries that result in virtually complete loss of use of that body part.
Next, the board will make a finding as to whether the protracted healing period (PHP) applies, which could result in additional weeks added to the SLU.
For PHP to apply, the amount of TTD payments you received during the time you actually missed from work due to your injury will need to exceed the PHP applicable to that body part. This will be the topic for a future blog post, but for now just understand that the basic idea of PHP is to recognize that injuries that took longer to heal than expected under the law might result in additional compensation for SLU.
Next, if you missed work due to your injury, the board will take into account the overall amount of money you were paid for that lost time and that amount will be deducted from the overall SLU award.
Finally, if you have something like a pre-existing condition or injury to the same body part, there could be apportionment, which could further reduce the amount of your SLU payment depending on what percentage of your permanent impairment is related to the work-related injury and what percentage is related to the prior injury.
Hypothetical Example of a SLU Award Calculation in New York
Let’s use a hypothetical example to illustrate how a SLU calculation might work:
Let’s say we have a nurse who tears the rotator cuff in her right shoulder while assisting a patient from a bed. She ends up missing 12 weeks from work due to the injury (all paid at the TTD rate), but fortunately was able to avoid surgery. Her AWW is $1,500 based on her wage statement. She treated with physical therapy for about 3-4 months and continued to see her doctor every few months until a year after the injury, at which point the doctor found her to be at MMI and said she had a SLU of 20% to the right shoulder. Let’s further assume that the insurance company did the right thing by accepting her doctor’s assessment of SLU rather than trying to undermine it with an IME.
What would her SLU award be?
First, we find out her TTD rate based on an AWW of $1,500. TTD is two-thirds of the AWW, so here the TTD rate is $1,000.
Second, she has a 20% SLU of the right shoulder. Since the maximum number of weeks for a SLU to the shoulder is 312 weeks, this means that a 20% SLU would equate to 62.4 weeks based on the following calculation: 312 weeks x 20% = 62.4 weeks.
Third, the protracted healing period will not apply here as Section 15 (4-a) of the workers’ compensation law says there must be 32 weeks of TTD payments for PHP to apply the shoulder. Here, our injured worker only had 12 weeks paid at TTD, so PHP will not apply.
Fourth, let’s assume our nurse does not have a prior right shoulder injury, so there is no potential for apportionment that could reduce her overall SLU award.
The Final Calculation
Given all of the above, it is finally time to do the math that will tell us how much our injured worker will be awarded for the SLU.
To do that, we take the TTD rate of $1,000 and multiply it by 62.4 weeks, which is what represents at 20% SLU. That equals $62,400, but now we also need to deduct the amount of temporary lost time payments she received.
Since she received a total of $12,000 for the 12 total weeks of TTD payments at $1,000/wk for the time missed from work, that means that $12,000 gets deducted from the $62,400 figure.
As a result of this deduction, the total SLU award that will be paid to our injured worker is: $50,400.
This SLU award payment will typically be requested as a lump sum payment, which the injured worker will receive shortly after the workers’ compensation board directs payment (usually within 10 days of the decision becoming final).
Conclusion
While the ins and outs of a Schedule Loss of Use (SLU) award can be difficult to fully understand as there are many factors that go into it, a workers’ compensation lawyer can help an injured worker navigate these complexities by taking charge of this aspect of the case so that the injured worker can focus on their recovery and achieve a safe return to work while feeling confident that they will not miss out on compensation that they deserve.
If you have been injured at work and are wondering if you might be eligible for a Schedule Loss of Use, please contact the Law Office of Michael J. McConnell today for a free consultation.
The Law Office of Michael J. McConnell is here to help injured workers across the state of New York, including:
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