Larson's Spotlight on Scheduled Award, Average Weekly Wage, Medical Benefits (Pool Therapy), and Nose Disfigurement. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.
NY: Cap Imposed by § 15(6) Applies to Periodic Payments of Scheduled Loss of Use Awards in Same Manner as Other Periodic Payments of Disability Benefits
The Court of Appeals of New York, in a split decision, recently reversed the Appellate Division (Third Department) and held that periodic payments of a scheduled loss of use award must be deferred to the extent that those payments, when combined with payments of another disability award, would have exceeded the cap imposed by N.Y. Work. Comp. Law § 15(6). Disapproving of an earlier decision of the Appellate Division [In the Matter of Miller v. North Syracuse Cent. School Dist., 1 A.D.3d 691 (N.Y. App. Div. 2003), the case on which the board and the Appellate Division relied, the majority observed that since under § 15(6), a worker who was permanently totally disabled in 2005-a quadriplegic, for example-could receive no more than $400 per week for his or her disability, it made no sense for a worker who suffered a hip injury, lower back pain and a hearing loss (as did the worker here) in that year to receive $800 per week ($400 for the first two injuries and an additional $400 per week for the schedule loss of hearing). The majority indicated that the rule in Miller would permit a partially disabled claimant to recover, over his or her working life, more than a totally disabled one.
See Schmidt v. Falls Dodge, Inc., 2012 N.Y. LEXIS 892 (May 1, 2012).
See generally Larson's Workers' Compensation Law, § 82.06, 92.01.
VA: Average Weekly Wage for Inexperienced Roofing Worker Computed on Worker's Share of Sum to be Paid, Divided by 52 Weeks
The Supreme Court of Virginia recently affirmed a decision by the state's Court of Appeals that determined that the average weekly wage of the deceased employee was $48.08, where the evidence tended to show that the deceased employee and another had been employed to install metal sheets on a roof-work that they had never performed-that the employer agreed to pay the two employees the sum of $5,000, to be split equally, and that the employer initially estimated that the task would be take approximately one week's work, but he told them he would not pay more than $5,000 if it took longer. The Supreme Court found that the deceased employee's representative failed to carry the burden of proving that any basis existed for computing the decedent's average weekly wage other than the single transaction with the employer ($2,500 divided by 52). There was certainly no evidence that the employer intended to pay the deceased the sum of $2,500 per week on a continuing basis.
See Thorpe v. Ted Bowling Constr., 2012 Va. LEXIS 97 (May 4, 2012).
See generally Larson's Workers' Compensation Law, § 93.01.
VA: Injured Worker Receives YMCA Membership and Mileage for Unsupervised Pool Therapy as Part of His Medical Benefits Award
A Virginia appellate court recently held that the state's Workers' Compensation Commission did not err when it required an employer to pay for an injured worker's YMCA membership and mileage for his unsupervised physician-directed independent pool therapy following a work-related injury. The court observed that both of the worker's treating physicians indicated the pool therapy was part of a continuing course of treatment, that both doctors noted that the worker's pain levels increased when he stopped the pool therapy after the employer and insurer stopped paying for the treatment, and the worker had introduced a doctor's prescription for the pool therapy and another doctor's notes that urged its continuation.
See American Armoured Foundation, Inc. v. Lettery, 2012 Va. App. LEXIS 138 (May 1, 2012).
See generally Larson's Workers' Compensation Law, § 94.03.
PA: Slight "Crookedness" of Nose Following Injury Does Not Qualify for Disfigurement Award
A Pennsylvania appellate court has affirmed a decision by the state's Workers' Compensation Board that denied claimant's request for a disfigurement award for her nose, noting that the Board had fulfilled its duty of personally viewing the claimant and that there was no support for the law judge's decision awarding 45 weeks of benefits. The Board noted that while there was a slight visible alteration to claimant's nose, the alleged disfigurement amounted only to a minor level of crookedness that was not noticeably disfiguring. It did not qualify, therefore, under 77 Pa. Stat. Ann. § 513(22).
See Walker v. Workers' Comp. Appeal Bd. (Health Consultants), 2012 Pa. Commw. LEXIS 134 (May 3, 2012).
See generally Larson's Workers' Compensation Law, § 88.03.
Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.
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