Understanding the Role of Prior Loss of Use in Workers’ Comp Cases
For the past few years, Segar & Sciortino has encountered resistance in certain types of Workers’ Compensation cases involving “schedule loss of use” (SLU) awards. Cases involving the arm, hand, leg, or foot can result in a schedule loss of use if a healthcare provider determines you have a permanent injury to one of those body parts. If you do have a permanent loss of use, the percentage is then plugged into a formula which equates to a certain amount of weeks of benefits at your temporary total rate of disability (2/3 of your average weekly wage at the time of injury), less prior payments you’ve already received.
However, based on a few recent cases, the insurance carriers have been successfully arguing that if you have a prior loss of use to the same body part (arm, hand, foot, leg), they could take credit for the percentage against the current injury—even if the prior injury was totally separate but involved the same body part. For example, if you have a prior permanent 10% loss of use of an arm for an elbow injury, and then you sustain a shoulder injury, the insurance carrier can take credit for the prior permanent 10% loss of use for the shoulder even though it was a completely different injury. So, even If your doctor says you have a permanent 10% loss of use for the shoulder, you would not receive any further compensation for that second permanent injury.
Thankfully, the New York Court of Appeals has modified the case law. While not a complete win, the Court of Appeals, the highest court in the state, found that as long as medical providers can show that current permanent loss of use is due solely to the current injury and not the past injury, insurance carriers can’t take credit for the prior loss of use.
All this means that when you meet with your attorney, it’s critical that you share any injuries or prior loss of use awards for body parts that have been reinjured during a work-related accident. Having all the details will allow your Segar & Sciortino attorney to better serve you throughout your Workers’ Compensation case.
For more information on prior schedule loss of use awards, to discuss your Workers’ Compensation case, or if you have questions about any workplace injury-related issue, please call or text our office at 585-475-1100.