Most of our clients do not heal completely. Sooner or later, their case reaches the stage that sets their final award: permanency.
Here is what that means, the two kinds of permanency awards in New York, and why workers with both kinds of injuries have more complex strategic decisions to make.
When Your Case Reaches Permanency
If you are not good as new, at some point after your accident you reach what is called maximum medical improvement.
It is often a year or two after the accident, and it can be sooner. It can also be much later if your case drags out: new injuries are added, there is an appeal, you have surgery, and so on.
When you get there, your disability status changes from temporary to permanent. Here is how that happens:
- Your doctor, the insurance company's doctor, or both examine you and write a report saying you are at maximum medical improvement, with a permanency opinion.
- The Workers' Compensation Board adopts one of those opinions.
- The Board cannot decide permanency on its own — there has to be at least one medical opinion backing it up.
Before Permanency: Week-to-Week Benefits
While you are temporarily disabled and out of work, benefits are measured by the week. Most people experience it as a check every two weeks, for twice the weekly rate.
At permanency, that changes. What you get next depends on what you injured.
Type 1: Schedule Loss of Use (a Lump Sum)
A schedule loss of use (SLU) award applies only to injuries to:
- arms, legs, hands, feet, fingers, or toes
- hearing loss
- vision loss
If your injuries are one or more of those, you get a schedule loss of use award. It is a single, one-time lump sum — not week-to-week benefits.
You are paid that lump sum minus what you were already paid week to week while you were temporarily disabled. For example, if the gross award is $100,000 and you have already received $50,000 in weekly benefits, you receive the remaining $50,000.
For how the percentage and the dollar amount are worked out, see our guide to what your SLU award is worth.
Type 2: Classification (Week to Week)
Every other injury — a back injury, a neck injury, a brain injury, a respiratory condition, a psychological condition — does not get a schedule loss of use award. Instead, you are classified with a permanent disability:
- Permanent partial disability: week-to-week benefits for a fixed number of future weeks. For example, a 75% permanent partial disability can pay up to 400 more weeks, assuming you are eligible for weekly benefits at that point.
- Permanent total disability: week-to-week benefits for life.
A classification is not a lump sum. It is weekly benefits, like before — the difference is that this is now your final award determination.
When You Can Get Each One
This is where the two awards really part ways.
Schedule loss of use does not care about your work status. You could be back at work at full pay, working for less, not working because of your injury, or not working for reasons that have nothing to do with it. If you are eligible for an SLU, you get it.
Classification is more complicated. To be classified, you generally need causally related lost time at the time of permanency — meaning you are already being awarded temporary disability benefits. Whether you are can turn on things like:
- whether you are attached to the labor market — if the Board finds your temporary disability is partial, the carrier can make you look for work and document it to keep your weekly benefits
- why you are not working: were you fired or did you quit for unrelated reasons, or did you stop because of your injury?
If You Have Both Kinds of Injuries
If your case is established for only schedule injuries, or only non-schedule injuries, you are playing by one set of rules, and you just need to understand them.
But if your case is established for both — say, a neck injury and a shoulder injury — pay close attention. Which permanency award you end up with depends on your situation at the time of permanency:
- Back to work at full pay (your old job, or another job paying as much or more): you generally get the schedule loss of use for the shoulder, not a classification for the neck.
- Working, but earning less than before: you are generally classified at reduced earnings — two-thirds of the difference between what you earned when you got hurt and what you earn now. (More on that in our guide to reduced-earnings benefits.)
- Not working because of your injury, and receiving temporary disability benefits: you will most likely be classified.
- Not working for reasons unrelated to your injury, and so not receiving temporary benefits: you get the schedule loss of use, if there is one available — in this example, for the shoulder.
One award can be worth far more than the other — for example, when a fairly mild back or neck injury sits alongside several schedule injuries to the arms, legs, and hands. Depending on the moves you make, you can end up with one type of award or the other.
Your attorney can tell you which award your case is headed for, and what each would be worth in your case.
Key Takeaways
- Permanency comes when you reach maximum medical improvement, and the Board needs at least one medical opinion to set it
- Schedule loss of use covers arms, legs, hands, feet, fingers, toes, hearing, and vision — a one-time lump sum, minus weekly benefits already paid
- Every other injury leads to a classification: a fixed number of weeks for permanent partial disability, life for permanent total
- You get an SLU whatever your work status; classification generally requires causally related lost time at permanency
- If your case has both kinds of injuries, your work situation at permanency can decide which award you get
Getting close to maximum medical improvement and not sure which award you are headed for?
Workers’ compensation is what we do. At Schotter Millican, LLP, we represent injured workers across New York City, and we have never represented an insurance company or carrier.
Call (718) 770-3708 for a free case review. No fee unless we win.
Hablamos español — llame al (718) 770-3708.
Mówimy po polsku — zadzwoń (718) 770-3708.