A Schedule Loss of Use is awarded for injuries to the extremities, as well as injures to the eyes and ears. Generally, a SLU is awarded approximately one year after surgery or the date of injury. A SLU is meant to compensate an injured worker for loss of use of part of an injured worker’s body, such as an injured worker’s inability to use their arm. Schedule Loss of Use is not necessarily meant to compensate for loss of earnings.
Therefore, a SLU can be awarded even if:
A SLU does not mean a Workers’ Compensation case is closed.
How is Schedule Loss of Use Calculated?
The New York State Workers’ Compensation Law sets forth a schedule that establishes the number of weeks payable for a 100% Loss of Use of an extremity, eye, or ear. A SLU is calculated by determining what percentage use an injured worker has lost. An injured worker’s doctor will file an opinion using the Board Form C-4.3 “Doctors Report of MMI/Permanent Impairment,” when he or she believes an injured worker has reached Maximum Medical Improvement.
The doctor must follow the New York State Workers’ Compensation Board Permanency Guidelines when completing the form. These Guidelines can be reviewed using the New York State Workers’ Compensation Board's resources: (https://www.wcb.ny.gov/2018-Impairment-Guidelines.pdf).
The current guidelines will be replaced on January 1, 2018. The new guidelines are supposed to reflect advances in modern medicine that enhance healing and result in better outcomes. Proposed guidelines were issued on September 1st 2017. We are very concerned about the proposed guidelines as they appear to significantly reduce the percentages that are allowed.
The Guidelines take into account functional loss of use of a body part, not pain.
Often, once an injured worker’s doctor comments on an injured worker’s percentage of loss of use, the insurance Carrier will choose to have the injured worker examined by their Independent Medical Examiner (IME). If there is a difference of opinion, a hearing or other proceeding may be held to resolve the difference. Many times, the dispute is resolved by negotiation and compromise.
Understanding Calculating Schedule Loss of Use
Once the percentage loss of use is agreed upon, there is a mathematical calculation to determine the number of weeks of benefits that the loss of use equals. For example, the arm is worth 312 weeks. This means that if an injured worker is found to have a 10% SLU of the arm, the injured worker is entitled to 31.2 weeks worth of benefits (312 x 10% = 31.2). Then, multiply the total rate by 31.2 weeks to determine the gross amount of the SLU. From that sum, deduct what has been previously paid. The balance is then typically paid in one lump sum.
Example Calculation for Schedule Loss of Use
Using the example of a worker with an Average Weekly Wage (AWW) of $900, 10% of the arm equals $18,720 ($600 x 31.2). The amount paid would be determined after deducting the amount of money paid during the period of disability. In this example, we will assume that the injured worker was out of work for 10 weeks and paid the 100% rate for 7 weeks and the 50% rate for 3 weeks. The amount paid is $5,100.
$600 [temporary total] X 7 = $4,200
$4,200 + $300 [temporary partial 50%] x 3 = $900; Total of $5,100
Thus, the amount moving from the SLU would be $13,620 ($18,720 - $5,100 = $13,620). Again, this is typically paid in a lump sum.
What if an Injured Worker's Condition Gets Worse after Receiving an SLU?
The insurance Carrier remains liable for medical treatment that’s caused by a work injury. If there is a material change in circumstances, such as further surgery, the injured worker may make an application to increase the SLU. The request must be made within 18 years of the date of injury or within 8 years of the last payment of Workers’ Compensation benefits.
In the event that the same injury takes an injured worker out of work in the future, before an injured worker is entitled to further weekly benefits, the injured worker would have to exhaust the payment made to them in the sum of $13,620. In the example, the injured worker would have to be out of work with a temporary total disability for 22.7 weeks before being entitled to additional money.
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