Workers’ Compensation – Schedule Loss of Use (2018)

The Workers’ Compensation Law provides awards for injuries that result in permanent loss of use of a limb – hands, feet, arms, legs, fingers, toes, vision loss, hearing loss, or facial scars. These are called “schedule loss of use” awards. The law also provides awards for “permanent partial disability” if an injury to another part of the body (for example the neck, back, head, lungs, or a psychological injury) prevents the worker from returning to work at full wages. These are called “PPD” cases, in which compensation is paid only for lost wages, but not for the permanent effect of the injury.

The Workers’ Compensation Board has created medical guidelines that allow it to find that a neck or back injury has resulted in a permanent partial disability even if the worker has returned to work at full wages and does not require any more treatment for the injury. The Board’s guidelines also that if an injured worker has a permanent partial disability to one body part, he or she is not entitled to payment of an award for schedule loss of use.

In this case, our client injured his neck, back, knee and shoulder in an accident. He was left with permanent damage to all four body parts, but was able to return to work at full wages. The permanent injuries to his knee and shoulder entitled him to compensation for schedule loss of use, while the permanent partial disability to his neck and back did not, because he was back to work at full wages.

The WCL Judge and the Board held that based on the Board’s guidelines, our client had a permanent partial disability to his neck and back, he was not entitled to be compensated for the schedule loss of use of his arm and leg. Although the Board’s decision was consistent with its guidelines and with decades of practice in the field, we appealed in an effort to change the law because it is unjust to deny an injured worker compensation for permanent loss of use of a limb simply because they also have another injury. This means that a worker with more injuries actually gets less compensation than one with fewer injuries, which makes no logical sense and is not a conclusion that is required by the law.

In a landmark decision, the Appellate Division, Third Department agreed with our position and held that where an injured worker has a permanent partial disability to one body part and a schedule loss of use to another, if the Workers’ Compensation Board does not make a monetary award for the permanent partial disability to a neck or back, it must provide payment for the schedule loss of use. This decision is an important change in the law that ensures fair and just compensation to injured workers.

Read the Taher decision here.