PERMANENT LIMB INJURIES AND “SCHEDULE LOSS” AWARDS
What is a Schedule Loss Award? The Workers’ Compensation Law provides money awards for the permanent loss or loss of use of a limb – arms, legs, hands, feet, fingers, toes, vision, hearing, and facial scars. These are known as “schedule loss of use” awards because there is a “schedule” in the law that assigns a value to each body part.
When Can a Schedule Loss Award Be Made? Before a schedule loss award can be made, the person must be at “maximum medical improvement” or “MMI.” The Workers’ Compensation Board defines MMI as a medical determination that someone has recovered from the work injury to the greatest extent expected and that no further improvement is likely.
How is a Schedule Loss Award Calculated? The amount of a schedule loss award depends on many factors including the date of the accident, the person’s wage, whether they missed time from work, how much they were paid for any lost time, which body part is involved, and the extent of the loss of use.
How is Loss of Use Decided? The Board has created “Impairment Guidelines” that instruct doctors how to calculate loss of use based on which limb was involved, the nature of the injury and/or surgery, and the permanent limitations – mostly related to “range of motion.” In most cases, there is no award for the injury itself – the award is based on the loss of function caused by the injury.
What Are the Guidelines? The most recent version of the Guidelines was issued in 2018. The 2018 Guidelines reduced many evaluations from what they had been under the 2012 Guidelines. For example, a total hip replacement was typically considered a 60% – 66 2/3% loss of use of the leg under the 2012 Guidelines, but under the 2018 Guidelines it is more likely to be evaluated as a 40% loss of use.
What if the Injury Is Disabling? If a limb injury can be assigned a schedule loss of use, then no compensation is paid for lost time after the person reaches MMI. The law treats limb injuries differently from other injuries. With an injury to the neck or back, no compensation is paid for the injury or for loss of function – the only compensation paid is for loss of earnings. By contrast, most limb injuries result in a limited period of payment for loss of earnings, but also result in some payment for the injury through the schedule loss award.
However, there are a limited number of situations in which a limb injury can result in ongoing payment for lost wages after the person has reached MMI. The Guidelines list the following situations as examples of limb injuries that should not be given schedule loss awards and may instead result in continued payment of lost wages:
1. Progressive and severe painful conditions of the major joints of the extremities such as the shoulders, elbows, hips and knees with:
a. Objective findings of acute or chronic inflammation of one or more joints such as swelling, effusion, change of color or temperature, tenderness, painful range of motion, etc.
b. X-ray evidence of progressive and severe degenerative arthritis.
c. Minimal or no improvement after all modalities of medical and surgical treatment have been exhausted.
2. Chronic painful condition of an extremity commonly affecting the distal extremities such as the hands and feet, with:
a. Complex regional pain syndrome (reflex sympathetic dystrophy), Sudeck’s atrophy or chronic painful extremity syndrome.
b. Objective findings or chronic swelling, atrophy, dysesthesias, hypersensitivity or changes of skin color and temperature such as mottling.
c. X-ray evidence of osteoporosis.
d. Minimal or no reported improvement after claimant has undergone all modalities of chronic pain treatment.
3. Mal-union of the long bones.
4. Aseptic necrosis of the head of the femur or other bones.
5. Instability of the knee joint or other major joints.
6. Advanced Paget’s disease.
8. Caisson’s disease involving the joints.
9. Chronic ulcerations, draining sinuses.
10. Recurrent dislocations (shoulders).
11. Amputees with neuromas or poorly healed stumps.
12. Failed joint replacement such as total hip, total knee and shoulder
What Can We Do To Help? Getting to the right conclusion about the appropriate award for a schedule loss of use requires significant legal skill and experience. The attorney must be knowledgeable about both legal issues and medical findings, plus be intimately familiar with the Board’s Guidelines. Most cases involve conflicting medical opinions, and careful review of the medical reports and the applicable Guideline provisions is essential. At Grey and Grey, LLP, we have decades of experience in this field to make sure that our clients receive a proper award – whether through negotiation or litigation.