Supersedes Subject Number 046-1211 dated October 4, 2019
March 13, 2020
This Subject Number concerns claimants who are working at full wages and have evidence of Schedule Loss of Use (SLU) to limbs, vision loss, or hearing loss, as well as established non-schedule injuries (usually back or neck) stemming from the same accident. This Subject Number supersedes 046-1211 issued October 4, 2019 in its entirety. The entire ‘Stipulation Attachment’ discussed in Subject Number 046-1211 will no longer be necessary, and the form and associated FAQs will be removed from the Board’s website. Any cases with stipulation attachments submitted prior to the issuance of this Subject Number will continue to be processed as before.
Pursuant to three decisions issued by the Appellate Division, Third Department on February 27, 2020, the Board will proceed to resolve Schedule Loss of Use (SLU) claims for claimants whose claims have been established for both schedule and non-schedulable body parts, and who are presently working at full pre-injury wages. Those decisions are Matter of Arias v City of New York, Matter of Saputo v Newsday, and Matter of Fernandez v New York University Benefits [formal citations omitted].
Specifically, the Court held that, “…where 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.” [Matter of Fernandez; underline in original].
Revisiting prior decisions: If the Board issued a prior decision contrary to the newly issued Court decisions, the Board will reopen the cases upon request. Claimants’ attorneys can file a Request for Assistance by Injured Worker (Form RFA-1) citing the circumstances. Unrepresented claimants can call the Board, or send in a letter, email, or Form RFA-1. Also, if the Board discovers that this has occurred in a case involving an unrepresented claimant, it will pro-actively reopen the case. The reopening protocol will apply whether the decision was issued by a conciliator, law judge, or Board Panel. In short, if the Board made a prior finding that a claimant who is working at full wages, with established SLU and non-SLU body sites from the same accident, and thus was not entitled to a SLU once permanency was found, the Board will proceed to make the correct ruling per the Court decisions.
Stipulations: If the parties stipulate to permanency, all established sites must be addressed in the Stipulation (Form 300.5 or Form 312.5), by indicating the agreed-upon findings. For each of the SLU sites, that means stating the percentage of loss of use. For each of the non-schedule sites, that means indicating either a) that the site(s) is/are permanently disabled, and the percentage of loss of wage-earning capacity, or b) a finding that the site is fully resolved with no permanent impairment. A specific medical report covering the non-schedule site(s) is not a pre-requisite, so long as the parties agree. The stipulation should also indicate that the claimant is working at pre-injury wages, so that the Board knows to indicate that it is fully payable. When the decision is issued, the carrier must then pay the SLU amount directed.
Adjudication: If medical (the Doctor’s Report of MMI/Permanent Impairment (Form C-4.3), or a carrier’s independent medical examination (IME)) addresses permanency for all established SLU and non-SLU sites, the Board will set a hearing on permanency, and the Workers’ Compensation Law Judge (WCLJ) will develop the record. The WCLJ will make findings on Loss of Wage-Earning Capacity, claimant’s present work status and, dependent on that finding, SLU. When the decision is issued, the carrier must then pay the SLU amount directed.
If medical (Form C-4.3 or a carrier’s IME) addresses all of the SLU sites, but not the non-SLU sites, the Board will commence the Form 81.7 process, wherein the other party is advised that it can obtain a medical opinion, and the parties can conduct depositions if desired. At the end of that process, if the parties have reached an agreement they will submit the Stipulation (Form 300.5 or Form 312.5), which will be processed by the Board (see Stipulations, above). If there is no stipulation, the Board will take further action once all established sites are addressed by medical evidence, per the Court decisions referenced above. In particular, in Matter of Fernandez the Court held that “…absent a finding of permanency as to the established neck and back injuries…” the SLU is not presently payable. To reiterate, the parties can so stipulate, or one or both parties can submit medical evidence of permanency to all established sites, and the case can then move forward.
Credit: When a SLU is awarded in a case with other established non-SLU sites, the carrier is entitled to a credit against any future awards for causally related disability arising from any established injury site.
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Clarissa M. Rodriguez