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CLAIMANT ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD DESPITE RETURNING TO WORK AT PREINJURY WAGES (SECOND DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award even though claimant returned to work at preinjury wages:

For the reasons set forth in Matter of Arias v City of New York (182 AD3d 170 [2020]), we find that the Board’s disregard of Matter of Taher v Yiota Taxi, Inc. (162 AD3d 1288 [2018] …) was in error and, therefore, reverse. As this Court has recently held, “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 nonschedule permanent partial disability classification, he or she is entitled to an SLU award” … . As there was a finding of permanency as to claimant’s neck injury and he has returned to work at preinjury wages, he is entitled to an SLU award for the remaining injuries … . Matter of Cruz v Suffolk County Police Dept., 2020 NY Slip Op 03713, Second Dept 7-2-20

Similar issues and result: Matter of Cosides v Town of Oyster Bay Sanitation, 2020 NY Slip Op 03710, Third Dept 7-2-20

 

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