You are here: / / BECAUSE CLAIMANT WAS NOT ENTITLED TO A NONSCHEDULE AWARD DUE TO RETIREMENT,...

BECAUSE CLAIMANT WAS NOT ENTITLED TO A NONSCHEDULE AWARD DUE TO RETIREMENT, HE WAS ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award because he was not eligible for a nonschedule award due to retirement:

A nonschedule award “is based [up]on a factual determination of the effect that the [permanent partial] disability has on the claimant’s future wage-earning capacity” and is mathematically derived from a claimant’s average weekly wages and wage-earning capacity … . On the other hand, an SLU award is designed to compensate for a claimant’s “loss of earning power” as a result of anatomical or functional losses or impairments … and, as such, “‘is not allocable to any particular period of disability'” … and is “independent of the time an employee actually loses from work” … . That said, “[a] claimant who sustains both schedule and nonschedule injuries in the same accident may receive only one initial award,” because SLU and nonschedule awards “are both intended to compensate a claimant for loss of wage-earning capacity sustained in a work-related accident[,] and concurrent payment of an award for a schedule loss and an award for a nonschedule permanent partial disability for injuries arising out of the same work-related accident would amount to duplicative compensation” … . “However, in the unique circumstance where no initial award is made based on a nonschedule permanent partial disability classification, a claimant is entitled to an SLU award” for the permanent impairments sustained in the same work-related accident … . …

… [T]here is no dispute that claimant is not entitled to a nonschedule award based upon his nonschedule classification because he voluntarily retired in April 2020 and was therefore not attached to the labor market at the time of classification … . Thus, as “no initial award [wa]s made based [up]on [claimant’s] nonschedule permanent partial disability classification” … , he “is entitled to an SLU award for the permanent partial impairments to [his] statutorily-enumerated body members” … . Finally, and contrary to the position taken by the Board, the fact that claimant voluntarily retired, and was therefore not attached to the labor market, does not preclude him from receiving an SLU award, because “it is axiomatic that a claimant’s lack of attachment to the labor market, voluntary or otherwise, is irrelevant to a determination as to entitlement to an SLU award” … . Matter of Gambardella v New York City Tr. Auth., 2022 NY Slip Op 02475, Third Dept 4-14-22

Practice Point: This Workers’ Compensation case includes a clear explanation of a “nonschedule award” versus a “schedule loss of use (SLU)” award.

 

You might also like
THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT).
SUPERIOR COURT INFORMATION DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT).
ABSENT A FINDING OF PERMANENT PARTIAL DISABILITY, CLAIMANT NEED NOT SHOW ATTACHMENT TO THE LABOR MARKET AND IS ENTITLED TO RELY ON HER CHIROPRACTOR’S OPINION SHE IS TEMPORARILY TOTALLY DISABLED (THIRD DEPT).
PETITIONER, A POLICE OFFICER, WAS ASKED BY HER SUPERVISOR TO PICK UP A LARGE BREAKFAST ORDER FOR THE PRECINCT; PETITIONER SLIPPED AND FELL ON ICE IN THE PARKING LOT WHEN RETURNING WITH THE ORDER; PETITIONER WAS “IN SERVICE” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW WHEN SHE FELL (THIRD DEPT).
THE ORDER OF PROTECTION WAS NOT SUFFICIENTLY TIED TO THE BEST INTERESTS OF THE CHILD IN THIS NEGLECT PROCEEDING AND SHOULD HAVE BEEN VACATED, ISSUE CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).
HEARING OFFICER DID NOT PROVIDE PETITIONER WITH WRITTEN NOTICE OF HER DENIAL OF PETITIONER’S REQUEST THAT A WITNESS TESTIFY, PETITIONER ENTITLED TO A NEW HEARING (THIRD DEPT).
Object’s Fall of 1 ½ Feet Constituted Physically Significant Elevation Differential for Purposes of Requiring a Safety Device Pursuant to Labor Law 240 (1)
INSUFFICIENT SHOWING BY THE STATE POLICE TO JUSTIFY DENIAL OF REQUEST FOR RECORDS PERTAINING TO A VICTIM OF CRIMES COMMITTED BY PETITIONER, MATTER REMITTED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANT WAS NOT ALLOWED TO SUBMIT AS EVIDENCE A FLYER FROM THE DEPARTMENT OF... ALTHOUGH CLAIMANT WAS STRUCK BY A VEHICLE WHILE HE WAS RIDING HIS BICYCLE TO...