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DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT).

The Third Department explained the difference between a schedule loss of use and a nonschedule permanent partial disability:

Workers’ Compensation Law § 15 (3) contains a schedule of awards for a permanent partial disability resulting from a loss of specific body parts or functions, such as vision and hearing (see Workers’ Compensation Law § 15 [3] [a]-[v]). Workers’ Compensation Law § 15 (3) (w) pertains to “all other cases of permanent partial disability” — i.e., those cases that are not amenable to a schedule award. Whether a schedule loss of use award or a nonschedulable permanent partial disability classification is appropriate constitutes a question of fact for the Board’s resolution, and its determination will be upheld if supported by substantial evidence … . A nonschedulable permanent partial disability classification, rather than a schedule loss of use award, “is indicated where there is a continuing condition of pain or continuing need for medical treatment or the medical condition remains unsettled” … . …

… [S]ubstantial evidence, in the form of the medical evidence that claimant suffers from RSD/CRPS, a chronic continuing pain of the face and the opinion that the ptosis of the eyebrow is worsening, supports the Board’s determination that an award of a nonschedulable permanent partial disability pursuant to Workers’ Compensation Law § 15 (3) (w), rather than a schedule loss of use award, is appropriate … . Matter of Tobin v Finger Lakes DDSO, 2018 NY Slip Op 04413, Third Dept 6-14-18

​WORKERS’ COMPENSATION LAW (DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))/SCHEDULE LOSS OF USE (WORKERS’ COMPENSATION LAW, DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))/NONSCHEDULE PERMANENT PARTIAL DISABILITY (WORKERS’ COMPENSATION LAW, DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT))

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RECENT AMENDMENT TO THE WORKERS’ COMPENSATION LAW APPLIES RETROACTIVELY,... A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE...