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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.

 

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