As we know in 2018, the Third Department issued a decision in Taher v. Yiota Taxi which was considered a fairly significant decision. That ruling opened the door for claimants with an injury to an extremity as well as a non-schedulable body part (generally neck and/or back) to secure a schedule loss of use award (SLU) even if there is permanency to the neck or back. Prior to that Decision, the Board had taken the position that a non-schedulable body part’s permanency trumps a potential SLU. Accordingly, an SLU could only be awarded in such a case if a finding was made of no permanency to the neck/ back. This did give rise to circumstances in which a claimant could have clear permanency to the neck or back- even based on spine surgery- but still pursue a schedule loss of use if her or she is back at work without loss of earnings.
Following Taher, the Board adjusted the way it handled these claims, but still largely maintained the position that there cannot be a permanency finding to the neck or back and an SLU. The Board created a form to be signed when a schedule loss of use is being stipulated to but the neck or back is also established. This Stipulation Attachment was addressed in the Board’s Subject Number 046-1211 of 10/4/2019.
Last month, the Appellate Division again addressed this issue in 3 decisions: Matter of Arias v City of New York, Matter of Saputo v Newsday, and Matter of Fernandez v New York University Benefits. The Court found that the Board was not properly complying with the prior Taher holding and found, “were a claimant who has sustained both schedule and nonschedule permanent injuries in the same work-related accident has returned to work at preinjury wages and, thus, receives no award based on his or her nonscheduled permanent partial disability classification, he or she is entitled to an SLU award.”
The Board has responded to these decisions and has essentially backtracked from the position it took post-Taher. The 10/4/2019 Subject Number is no longer in effect. The Board has indicated that it will now permit claimants in this situation to obtain a schedule loss of use award even though there is permanency to the neck/back. Please note that the Board has indicated that it will permit reopening of prior claims in which an SLU was not awarded because of permanency to the neck or back. If an SLU is paid and the claimant later goes out of work and is awarded PPD benefits, the carrier will be entitled to credit for the SLU award.
The decisions do contain several noteworthy provisions which we will discuss:
1. We can no longer claim that an SLU is never payable unless a finding is made that there is no permanency to the neck/back.
2. However, as per the recent Decisions, this is only applicable when the claimant has returned to work at pre-injury wages. Accordingly, if a claimant is working, but earning less money, or if a claimant is only pursuing the SLU award after retirement, we can argue that these holdings do not apply.
3. Previously, even if a claimant was out of work but was found to not be attached to the labor market, an SLU would often be awarded. However, we can maintain that a claimant who is not attached to the labor market and who has permanency to the neck or back is not eligible for an SLU award.
4. We will also take the position that if a given claimant is pursuing an SLU award when there is permanency to the neck or back, the WCLJ should address LWEC at the same hearing at which the award and permanency findings are being made. The reason for this is that such a claimant is back at work without a reduction in earnings. In most cases, that will be a very significant mitigating factor in assessing LWEC. In a hypothetical claim in which a claimant is found to have permanency to the back and is awarded an SLU, we will ask the Judge to also make a determination as to LWEC, and that said LWEC should be a very low percentage. If the claimant never reopens the claim to pursue PPD benefits, the percentage LWEC will not matter. However, because this claimant may well reopen in the future to pursue PPD benefits, a low LWEC percentage will protect us against significant future exposure for indemnity benefits.
If, in the example posed, the claimant has a claim established to the back and both shoulders with an AWW of $1,200.00 and is now pursuing permanency. The claimant is back at work full duty. If the claimant is awarded a 7.5% SLU of each arm, that award would equal 46.8 weeks at $800.00, or $37,440.00. If the claimant was also found to have a 25% LWEC. That would be worth 250 weeks of benefits at $200.00, once the cap begins to run (if ever). That gross award is $50,000.00- but we would have credit for the SLU award, which means that the PPD benefits, if ever claimed, would effectively be worth only an additional $12,560.00.
If, however, the Judge waits until the claimant goes out of work to assign an LWEC percentage, it is likely to be much higher, as the main mitigating factor- the claimant working without a loss of earnings- is no longer applicable. In addition, the claimant would be older if the Judge waits until he or she stops work, which would be a potential aggravating factor. While claimant’s counsel may object to an LWEC finding under these circumstances, our position will be that LWEC must be determined when permanency is found. Please note that even under the position we take, the number of weeks will not begin to run until the claimant goes out of work. We will also maintain that if the cessation of work is unrelated (perhaps an age-related retirement), we will maintain that the lost time is unrelated and no awards should be made.