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Classification vs. scheduled loss
#2
(12-01-2011, 11:17 AM)Chimaren Wrote: Due to the rareness of thoracic outlet syndrome (TOS), .....

Rare, yes, but easily treated with surgical intervention involving a first rib resection (removal), or decompression of the subclavian artery and vein. I know. I had it done 35 years ago. The procedures are far more advanced than they are now.

Quote:So my question to board members, which is better:

1. filing for scheduled loss of use of the arms and classification for TOS
or
2. filing for classification loss for everything?

Something you need to remember when considering the two is that the ironic part of the NY schedule loss of use statute is that all benefits paid to an injured worker while they are out of work prior to the finding of permanency are subtracted from the schedule loss of use award.

Now, to explain, a "scheduled" loss means it involves the loss of eyesight or hearing, or loss of a part of the body or its use.

A "non-scheduled" loss would be anything other than those. In other words a PARTIAL loss of use of a part of the body is NOT loss of use, therefore, not a "scheduled" loss. That is when the 66 2/3% would come into play.

Using the formula on the following link, you would determine what percentage of "loss of earning capacity" and find the number of weeks within that percentage range, times the weekly benefit amount.

http://www.wcb.state.ny.us/content/main/...yClass.jsp

Bear in mind that TOS does NOT present a 100% loss of use of the limb as it does not render the limb totally useless.

Using the formula, for a "scheduled loss", let's say that your loss of earning capacity is 50%. The maximum number of weeks you could draw would be 300 weeks. If your weekly benefit amount was $400, then you'd be entitled to 300 weeks at $400. That means a lump sum of $120,000. Now, if you had drawn $20,000 in benefits while you were out of work, that would be deducted, and you'd be entitled to $80,000.

This is for illustration purposes only, as the calculation is a bit more complex than that.

As to the "non-scheduled" loss, i.e. partial loss of use of a body part, then using the same 50% loss of wage earning capacity, you would be entitled 66 2/3% of the difference between your actual wage earning capacity and the AWW for 1/2 the number of weeks in the formula.

From what you're presenting, you seem to be trying to decide whether to choose one over the other. There is no choosing. Your impairment is either a "scheduled loss" or it is a "non-scheduled" loss.
DISCLAIMER: I am not an attorney. While drawing from my professional training and experience in law enforcement and as a former Paralegal, no comments offered should be considered as legal advice.
 
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RE: Classification vs. scheduled loss - LeglEgl - 12-01-2011, 05:31 PM

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