New York: Worker Entitled to Schedule Loss of Use Award in Spite of Return to Work

A New York appellate court held it was error for the Board to find that an injured worker was not entitled to a schedule loss of use (SLU) award for injuries to her ankle, hand and finger, where she had returned to work at her preinjury wages and, therefore, was not entitled to a nonschedule award under N.Y. Workers’ Comp. Law § 15(3) for injuries to her cervical and lumbar spine. The court disapproved of what it called the “virtual banking” of benefits where the claimant returned to work at full wages, stressing that the worker was entitled to the SLU award irrespective of her earnings. The Court acknowledged that the Board should be concerned about the possibility of a claimant receiving “double” recovery, but said the withholding of an SLU award in favor of “virtual banking” on nonschedule cap weeks added unnecessary complexity to the case.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Arias v. City of N.Y., 2020 N.Y. App. Div. LEXIS 1440 (3d Dept. Feb. 27, 2020)

See generally Larson’s Workers’ Compensation Law, § 86.02.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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