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QUESTION: How is a nonschedule loss of use award calculated in New York?
ANSWER: Calculating a nonschedule loss of use award is complicated and often hotly contested by a workers’ compensation carrier and the adjuster. Many times an injured or ill worker will need to present at an independent medical examination (IME), a deposition, or a hearing – sometimes all three. This is because a nonschedule loss of use award is for a permanent disability to a body part or systems that is not easily determined like a permanent injury to an arm or leg. It is also for body parts or systems that are significantly move complex and difficult to value. Thus, individuals who may have a nonschedule loss of use award should call an experienced workers’ compensation lawyer in NYC for help.
Under New York workers’ compensation law and the accompanying regulations, an individual who suffers a permanent disability from a work-related injury or illness may be entitled to a nonschedule loss of use award if the disability is to a part of the body or a body system that is not on the schedule loss of use chart. This means that the disability must be to a part of the body which is not an arm, leg, eye, hand, foot, or other part of the body that is on the enumerated chart. It also means that the injury or illness must have reached its maximum medical improvement (MMI), and will no longer heal or continue to improve.
Nonschedule loss of use injures are different than schedule loss of use. They are more difficult to value and determine the full extent of disability. Some of the most common examples of nonschedule loss of use awards include the following:
Calculated a loss of use award is complicated and often fiercely opposed. First, a claimant’s percentage of disability is calculated. This could either be from an independent medical examination (IME) or when physicians can agree on a percentage of disability that the attorneys for both sides accept as fair and reasonable. Next, a person’s average weekly wages are determined. This is the last 52 weeks of income divided by 52 to get the weekly wage. A claimant is entitled to up to two-thirds (2/3s) of the average wage wages.
Finally, the nonschedule loss of use award chart is consulted. This chart sets forth the maximum number of weeks per disability percentage. A claimant is than awarded the appropriate chart of his or her average weekly wages. For example, if a person has $900 in weekly wages, 2/3s of that would be $600. For a disability which is between 40% and 50%, a claimant would be entitled to receive 300 weeks of average weekly wages. That would result in an award of $180,000.
As you can appreciate, nonschedule loss of use awards in New York are complicated and have big ramifications if they are mishandled. These can affect not just the claimant, but his or her entire family. If you have questions, call us for answers or read more on our website before reaching out.
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